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Fence being erected on railroad easement

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Latest post Tue, May 8 2007 10:02 AM by Drew. 5 replies.
  • Wed, May 2 2007 9:42 PM

    Question [=?] Fence being erected on railroad easement

    Ok my grandmother owns a property that is adjoined by a right of way for a railroad company. The railroad company has abandoned the railroad and has actually dismantled it. Now this right of way is a sore spot with my neighbor and I. They have numerous animals (dogs, 21 to be exact), so they are putting up a fence. The problem now is that the fence is on the right of way, which my family has maintained and used to pull into the garage for 34 years. I need to know some of the laws so when we dispute this I know I am in the right. Or I am looking for laws that will prove to me that I am not in the right. I would like to hear what anyone can tell me about this. I have looked all over the internet and I have not been able to find anyone or any sites that can help me.

  • Wed, May 2 2007 10:04 PM In reply to

    re: Fence being erected on railroad easement

    Then you need a lawyer who specializes in this kind of stuff and who can get a temporary injunction against the neighbor while rights get sorted out.

    Use the find a lawyer feature to the right.

    Don't wait.

    Otherwise your neighbor will have his fence and you'll have...
    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Thu, May 3 2007 8:15 AM In reply to

    • Jeeper
    • Top 100 Contributor
    • Joined on Fri, Jun 24 2005
    • Posts 494

    re: Fence being erected on railroad easement

    For starters, check your county auditor's website, or tax assessor's website, to see if the RR company stills owns it, or if they've legally vacated it, or otherwise transferred title. You can stop in your county administration building and talk to someone in the auditor/tax assessor's office.

    Aside from that, I agree with the first response, you'll need to consult a local real estate attorney. It's possible that a well scripted letter on an attorney's letterhead will persuade neighbor to move the fence with no further action needed. Sometimes it works, sometimes it doesn't.

    RR rights-of-way can be tricky. Call a few different attorneys and try to find one that has dealt with RR R/W issues before.
  • Tue, May 8 2007 9:54 AM In reply to

    • Drew
    • Top 10 Contributor
    • Joined on Thu, Mar 30 2000
    • PA
    • Posts 51,431

    re: Fence being erected on railroad easement

    Your GM has a bit of a nasty situation brewing and unfortunately the person with the bigger set of brass ones is likley to win--I very strongly suggest GM rent the best brass ones she can find--in form of local bulldog attorney who handles RE law..

    There are essentially two issues.

    And lest GM say or use the wrong words , I would suggest she clam up--because in the wrong forum to claim use by permission cn be exactly the WRONG point! She reviews legal issues with counsel!

    Both adverse possession and prescriptive easements are 21 year time frames in PA.

    1. As to access way to garage--continuous adverse open (w/o permission!) use of that roadway for over 21+ years has probably ripened it into a prescriptice easement. It is CRITICAL that GM move forward via counsel to keep that roadway open. And yes, I mean you review it with counsel--and you may need to use equipment to open it the next day ( One very good local PA attorney explained that sometimes in cases like this its besto just do it and be ready to defend than it is to sit back and let it take months and months in court--but this is something that GM needs to review with counsel.

    #2 As to ownership of the old RR roadbed area. this is a tricky issue of 21+ years of continuous adverse open (w/o permission) AND to exclusion of others. If GM maintained it for 21+ years that my or may not cut it--but if she fails to exclude others she loses it--and it others exclude her long enough they WIN . It may be time critical that GM with same counsel as above, get that fence down and GM's fence erected to keep them out.
    I do not know if GM's failure to erect a fence earlier will hurt her--but if she says the "wrong things" about who was alllowed to walk there she may hurt her case!

    If GM snoozes she will lose this one!

    Often, in my area of PA folks who abut an old RR right of way sort of agree to split it down the middle--which sometimes is more cost effective than an all or nothing legal posture....

    But do not snooze!

  • Tue, May 8 2007 10:02 AM In reply to

    • Drew
    • Top 10 Contributor
    • Joined on Thu, Mar 30 2000
    • PA
    • Posts 51,431

    re: Fence being erected on railroad easement

    A fence is not required it seems in PA but GM needs to be able to show exclusive use---

    "It is well settled that a party claiming title to real property by adverse possession must affirmatively prove that he or she had actual, continuous, distinct, and hostile possession of the land for twenty-one years. Fred E. Young, Inc., v. Brush Mtn. Sportmen's Ass'n, 697 A.2d 984 (Pa.Super.1997). Each of these elements must exist, otherwise the possession will not confer title. Id. An adverse possessor must intend to hold the land for himself, and that intention must be made manifest. Id. Broadly speaking, actual possession of land is dominion over the land; it is not equivalent to occupancy. Id. There is no fixed rule, however, by which the actual possession of real property by an adverse claimant may be determined in all cases. Id. The determination of what constitutes actual possession of property for purposes of adverse possession depends on the facts of each case, and to a large extent, on the character of the premises. Id. The words visible and notorious possession mean that the claim of ownership must be evidenced by conduct sufficient to place a reasonable person on notice that his or her land is being held by the claimant as his own. Id. To constitute distinct and exclusive possession, it need only be a type of possession which would characterize an owner's use. Id. Further, in order for adverse possession to ripen into title, it is necessary to show that such possession has been continuous and uninterrupted for the full statutory period. Id. In this Commonwealth, the statutory period is twenty-one years. The law does not require that the claimant remain continuously on the land and perform acts of ownership from day to day. Id. The word "hostile," as an element of adverse possession does not mean "ill will" or "hostility," but implies an assertion of ownership rights adverse to that of the true owner and all others. Glenn v. Shuey, 407 Pa.Super. 213, 595 A.2d 606 (Pa.Super.1991). If all of the elements of adverse possession other than hostility are established, the element of hostility is implied. Id. However, it is important to note that where a familial or fiduciary relationship exists, permissive use will be presumed, thereby negating the element of hostility. Waltimyer v. Smith, 383 Pa.Super. 291, 556 A.2d 912, 914 (Pa.Super.1989)."

  • Fri, May 11 2007 11:58 AM In reply to

    • lizlew
    • Not Ranked
    • Joined on Fri, May 11 2007
    • Posts 1

    re: Fence being erected on railroad easement

    I have a somewhat similar situation. L & N Railroad applied and was granted a certificate of abandonment in 1967 to a right-of-way that runs on our land. Almost always right- of- ways are determined to be mere easements (legal definition) Since our railroad abandoned their line in 1967 the easement was extinguished. My family owned property that had the right-of-way running accross it. We sold property to the margin of the right-of -way on the north and south maintaining the land that had the right-of-way accross it to access a one hundred and forty acre field so we own the entire right-of-way but usually it ends up reverting to abutting land owners.
    You need to first look at your deed to see what if any part of the right-of-way (if it is a right-of-way and not fee simple) is on your land, also chek out your neighbors! If your deed says it has as a boundary this right-of-way then you need to establish if it indeed has been abandoned. Non use and taking up the tracks is not sufficient. Is the railroad still paying taxes- check the courthouse. Did they deed the property to someone else? When was it abandoned? The rules are different after the early eighties. Did the Railroad quit claim land to the municipality?
    It it was truly abandoned and not quit claimed to municipality then you can go to court to remove the cloud from your title and get the court to give you your share.
    Good luck
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