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Section 4: Acquisition of Operating Railroad Interests

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Competing Public Interests

There are instances when TxDOT has determined the necessity to acquire ROW that is currently being used by an active or operating railroad. This is a situation where there has been no order of abandonment by the STB and the railroad company is using the property for railroad purposes. In this instance it is extremely difficult to acquire any interest in the property without cooperation from the railroad company. When TxDOT and a railroad company desire the same property for different purposes, a determination must be made as to the paramount public interest to which the property should be put. Without agreement between the agencies the matter must be resolved in court. Usually the current use of the property would be considered a paramount use. Thus, it is very difficult to change the use from railroad to ROW purposes without consent of the railroad company. In these instances TxDOT should pursue an appropriate Joint Use Agreement with the railroad company. The uses of such agreements are set forth in Railroad Agreements.

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STB Requirements

If it is imperative that TxDOT acquire ROW from an operating railroad, an order of abandonment must be issued by the STB. TxDOT cannot acquire a property interest from a railroad company if the company is still under the jurisdiction of the STB. If cooperation from the railroad company can be obtained, they may file a petition for abandonment and the section needed by TxDOT can be abandoned by the STB. If the railroad company refuses to cooperate, there is a procedure where TxDOT can file a petition for involuntary abandonment. This is a very complicated, expensive and lengthy procedure and should be avoided except in very rare circumstances. If this procedure must be used, the ROW Division should be contacted for assistance. Once an order of abandonment has been issued, acquisition can proceed in accordance with normal acquisition procedures.

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Limitations on Use of Eminent Domain

The general rule is that the power of eminent domain cannot be used against an operating railroad. If a railroad company refuses to cooperate in the acquisition of property that is currently being used for railroad purposes, TxDOT cannot condemn the property until an order of abandonment had been issued by the STB. Any condemnation proceeding cannot be instituted until such order has been issued. Once the order has been issued and the railroad company refuses to accept the offered compensation, condemnation can proceed according to normal policies and procedures.

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