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Defining the true title status of railroad right-of-way in the American West — A review of the California position announced

from Printed with permission of the author

Brian Portwood, is a licensed professional land surveyor who has been recognized as a leader in the advanced education of professionals working in the land rights industry.

Early in 2014, the problematic nature of railroad right-of-way (RR R/W) from a title perspective was vividly displayed in the case of Brandt Revocable Trust v United States (US) (134 S. Ct. 1257) and the potential impact of that decision upon certain very popular yet highly controversial surface uses of former RR R/W has been well documented. In reaching the High Court, the Brandt case focused the attention of land rights professionals around the nation upon the fate of RR R/W that is no longer in use for its originally intended purpose, which of course is not an uncommon scenario, since extensive railroad abandonment has occurred in recent decades. Near the close of 2014 however, the California Court of Appeals (CCOA) addressed another case involving RR R/W, which appears to be well positioned to unleash an even more powerful legal shock wave, with truly enormous consequences for participants in the utility industry, as this time the controversy relates to subsurface land use of both former RR R/W and currently active RR R/W. While both the Brandt case and the one reviewed herein are, at their core, controversies implicating title to land, this latter battle, which is now awaiting attention from the California Supreme Court, could ultimately produce the most explicit and detailed clarification of the legal status of vast portions of the existing network of RR R/W traversing the American West that has ever been handed down.

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