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Section 3: Acquisition of Abandoned Railroad Interests

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Definition of Abandonment

There are two methods by which an interest in property can be abandoned by a railroad company.

Common Law Abandonment. Common law abandonment of railroad ROW can be characterized as a cessation of a railroad company's right to use property for railroad purposes after official abandonment action by the STB. This type of abandonment occurs when a railroad company has an easement interest in land for railroad purposes. The easement document will usually state that upon the cessation of use of the property for railroad purposes, the use of the property reverts to the underlying fee title owner. Even if the easement document does not contain such verbiage, the cessation of use by the railroad company will operate to re-vest title in the fee title owner. This type of abandonment is a matter of intent. A railroad company is deemed to have abandoned their rights in the property if:

  • A release of the interest is executed by the railroad company.
  • A deed or other instrument of conveyance is executed in favor of the fee title owner.
  • Tracks, ties and other improvements have been removed from the property by the railroad company.
  • The railroad company has ceased to maintain the property for railroad purposes.

Quite often there is a dispute between a fee title owner and the railroad company as to the issue of intent. Unless it is expressly determined that abandonment has occurred, TxDOT must deal with both the fee title owner and the railroad company in acquiring the needed ROW.

Relinquishment of Jurisdiction. Abandonment, or relinquishment, of jurisdiction is the cessation of jurisdiction over a railroad company's operations by the STB. This form of abandonment occurs when the STB issues an order of abandonment. This determination is made when interstate commerce is no longer being served by the railroad company on the property and Federal oversight is no longer necessary. This type of abandonment can occur if the railroad company owns fee title to the property or has an easement interest in the property. If an easement interest only is owned, this abandonment does not terminate the easement or any other rights to use the property by the railroad company.

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Basic Acquisition Procedures

In situations where TxDOT has determined the necessity of purchasing a real property interest for ROW purposes, the acquisition procedures set out in Volume 2 - Right of Way Acquisition should be followed. An order of abandonment must have been issued by the STB before TxDOT can acquire needed ROW from a railroad company. Once the order has been issued, a railroad company is treated the same as any other property owner. If the railroad company owns fee title to the property, TxDOT is required to only negotiate with the company. If fee title is vested in a third party and the railroad company only has an easement interest, TxDOT must negotiate with the fee title owner and the railroad company. If it can be determined with certainty that the railroad company has effectuated a Common Law Abandonment of its interest in the property, TxDOT is required to only negotiate with the fee title owner.

A situation may occur when it is in the best interest of TxDOT to acquire an entire railroad corridor that is subject to abandonment by the STB or a railroad company desires to sell an entire abandoned corridor instead of just a portion. In those instances, TxDOT has developed a Corridor Preservation Policy for Abandoned Railroads. A Corridor Preservation Task Force Report has been developed for use in those situations. The policies and procedures set forth therein should be followed in those situations in addition to the basic procedures for ROW acquisition detailed in Right of Way Acquisition.

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Acquisition by Eminent Domain

Acquisition of the interest of a railroad company when an order of abandonment has been issued by the STB can be accomplished by the power of eminent domain. The authority of TxDOT to condemn railroad property in this instance is not limited by the fact that a railroad company has an ownership interest in the property. The policies and procedures set forth in Eminent Domain should be followed in the condemnation of railroad property when an order of abandonment has been issued.

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