Private Rights and Public Ways: Property Disputes and Rails-to-Trails in Indiana

40 Pages Posted: 15 Oct 2015

See all articles by Danaya C. Wright

Danaya C. Wright

University of Florida Levin College of Law

Date Written: 1997


In 1983, Congress expanded the National Trails System Act to promote the conversion of abandoned railroad corridors into hiking and biking trails. By early 1997, there were over 9000 miles of rail trails in the United States. Some of these are well-groomed, paved, multi-use trails in urban and suburban neighborhoods; others are relatively undeveloped, dirt paths along railroad corridors through rural farmland, state parks, and industrial sites. Indiana currently has less than fifty miles of trails, only twenty of which are fully developed, paved trails. In contrast, Minnesota has more than 1100 miles of trails, and Michigan has more than 1000 miles of trails."* There is "a big blank spot there in Indiana" as two proposed coast-to-coast trails stop at Indiana's border.

The National Trails System Act "encourage[s] state and local agencies and private organizations to establish appropriate trails" by preserving "established railroad rights-of-way for future reactivation of rail service." Due to the rapid decline of rail service over the last fifty years, the mileage in our nation's rail system has shrunk from more than 270,000 miles at its peak to 141,000 in 1970, with a continuing loss of over 2000 miles of corridor yearly. Realizing that once the corridor is broken up, it would be prohibitively expensive to regain it. Congress has used the Trails Act to promote "railbanking" — the preservation of these corridors for possible future use. But many landowners would like to reacquire the corridor lands that were carved out of their parcels over a century ago on the theory that termination of rail service extinguished the railroads' property rights in the corridors. As a result, Indiana has become a hotbed of litigation over property rights to discontinued corridors. And although most of the states that have dealt in depth with the legal issues surrounding corridor conversions have ruled in ways that promote the federal railbanking policies, Indiana courts have stubbornly relied on and misapplied thirty- and forty-year-old precedents that do not adequately address the complex legal issues at stake in these cases.

This Article attempts to clarify the muddied legal issues that have, heretofore, stalled trail development, spurred a significant amount of acrimonious litigation, and resulted in a ruling by the supreme court that is not only contrary to basic rules of property law and Indiana legislation, but goes against the general rationale in every other state that has taken the time to consider the issue on the merits. Current lawsuits, including a series of class-action suits by property owners adjacent to these abandoned railroad corridors, are challenging the sale of railroad rights as illegal, unconstitutional takings, and slanders of title. They claim that upon abandonment of railroad services, title to these corridors reverts to the adjoining landowners who, fearing crime and an influx of urban users, want to fence off, shut down, and otherwise halt trail conversions occurring literally in their back yards. And Indiana property law is, unfortunately, not particularly clear or well-developed, leaving attorneys for the trails, the railroads, and adjoining landowners to argue from rules laid down in thirty-year-old cases that did not anticipate the needs and developments of the twenty-first century. Furthermore, as with any area of law governed by federal regulations. Federal and State statutes, common law property doctrines, and arcane rules of property construction, most lawyers have sense enough to stay far away.

It is unfortunate that in a case of tremendous public interest, the Indiana Supreme Court thought fit to bestow a scant four paragraphs of legal analysis on the issue of interpreting railroad deeds. In doing so, the supreme court adopted the misguided and illogical reasoning of the court of appeals. In a case of this importance, the subject properly deserved a thorough analysis of the law and policy reasons that, under the guise of protecting private property, were completely ignored. I urge the court to reconsider this case in the hope that a more careful attention to the precedent being set and the application of well-settled, basic property-law principles will result in a decision that protects the property rights of all parties, including the railroads, not just the questionable claims of a noisy few. The property law issues are relatively straightforward once we are able to move beyond the confusing legacy of nineteenth-century railroad practices and title documents.

Keywords: railroads, trails, trail development, National Trail Systems Act, Indiana, property rights, railbanking

Suggested Citation

Wright, Danaya C., Private Rights and Public Ways: Property Disputes and Rails-to-Trails in Indiana (1997). Indiana Law Review, Vol. 30, p. 723, 1997, Available at SSRN:

Danaya C. Wright (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States
352-273-0946 (Phone)
352-392-3005 (Fax)

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