COLORADO’S PUBLIC HIGHWAY: THE RAILROAD
Miners in the remote regions of Colorado’s Rocky Mountains struggled with transporting their ore to far away smelters. Without roads, miners packed 50+ pound bags on a burro and used narrow trails. 100+ “jack trains” were not uncommon. When roads were built, they used wagons pulled by six horse hitches. Ascents could move 6,500 pounds per wagon while descents could move 12,000+ pounds. (1) But carrying foot and water for burros and horses often decreased the payload. Railroads were better since a tram car could haul much heavier loads and, except for water, did not need oats and hay. As well, railroad companies had explosives which were not always available to wagon road builders. Explosives could remove dangerous overhangs, widen narrow defiles and allow for more level surfaces on low slopes. But railroads needed rights of way for their track lines which could be inordinately expensive (by then financial standards) to build. To attract investors, railroads needed cheap labor and cheap rights of way.
Acquisition of Railroad Rights of Way: Railroads could acquire their rights-of-way in one of three ways.
(A) RS 2477. Enacted in July, 1866 (Sec. 8, Mining Act of 1867), this single-sentence statute stated: “The right of way for the construction of highways over public lands not reserved for public use is hereby granted.”. This statute was discussed in the Report. It was an unconditional offer to dedicate public lands for public highways. State law would determine whether the land route so created was a public highway.
Effective August 1, 1876, Article XV, §4, Colorado Constitution, provided that: “All railroads shall be public highways and all railroad companies shall be common carriers.”. (3) (See: G.L. 1877, PG. 69) In Colorado, a railroad could thus acquire an RS 2477 right-of-way over federal lands in the public domain by simply constructing its bed and track line over the lands. Like all other RS 2477 roads, registration, notice or other communication with any federal agency was not required. Colorado statutes dealing with public highways (including RS 2477 dedicated roads) set 60 ft as the width of the right-of-way. Sec. 2971, G.S. 1883, Chapter XCV
(B) The 1875 Railroad Act: In 1875, Congress enacted the General Railroad Right of Way Act. (Pub.L. 9-579, Title VII §706(a), 90 Stat. 2793 (1976), codified as 43 USC 934). (1875 Act) Under this 1875 Railroad Act a railroad corporation, before any actual construction, could obtain a 200 ft. wide right-of-way over federal lands in the public domain by “locating” its intended route. The railroad would survey the route; stake it; and then draw the route on a plat (called a “profile”) certified by the railroad and its engineer as authentic. The administrative procedure was rather simple. First, the railroad’s corporation certificate was filed with the Secretary of Interior, and approved by the Secretary. (4) 3 USC 934 The certificate of incorporation had to authorize the construction and operation of a railroad. Washington & I. R. Co. v. Coeur d-Alene Ry. & Nav. Co. 160 U.S. 77, 99 (1895) Second, the railroad filed its profile with the local Government Land Office (GLO), who forwarded it to the Secretary of Interior for approval. 43 U.S.C. 937 More than one railway company could share the same line. 43 U.S.C. 935 Third, upon approval by the Secretary, the land on which the route was located was deemed removed from the public domain and no longer available for homestead or cash purchase. Id. Ex Parte Davidson 57 F. 883, 886 (C.C. Wash. 1893) A subsequent homestead or cash entrant took subject to the approved profile and right-of-way. Comford v. Great Northern Railway 120 N.W. 875,877 (ND; 1909) However, a homestead or cash entrant who entered before the profile was filed took the land free of the railroad’s right of way. Id. A homestead or cash entrant entering while a filed profile was pending the Secretary’s approval was still subject to the ultimately approved right-of-way.
There were, of course, various conditions attached to this right-of-way. “A railroad company obtains only the right to use the land for the purposes for which it is granted and for no other purpose and may hold such possession, if it is necessary to that use, as long and only as long as that use continues.” See 43 C.F.R. §2842(a) (1909) Toews v. United States 376 F.3d. 1371, 1376-77 (Fed. Cir. 2004) (Holding that the grant under the 1875 Railroad Act authorized only one set of uses: i.e., railroad uses by train and not others.) The profile had to be filed within 12 months of the railroad locating any twenty mile section of its road. Id. If any section of the rail bed “…shall not be completed within five years after the location of such section…”, then all rights of way were forfeited as to the uncompleted section. 49 U.S.C. 937 After filing an original profile, the railroad could thereafter change the location of its road, so long as the change did not affect intervening rights. The railroad had five years in which to build its track line on the approved right-of-way and if it did not then the right-of-way was forfeited. 43 USC 937
The exact legal nature of the right-of-way granted by the 1875 Act had been the subject of mixed decisions. In 1903, the U.S. Supreme Court considered a railroad right-of-way statute (Act of July 2, 1864; 13 Stat at L. 365, Chap. 217) which contained language identical to the 1875 Railroad Act. The court held the right-of-way was a limited fee made on an implied condition of reverter when the right-of-way was no longer used for railroad purposes. Northern Pac. Ry. Co. v. Townsend 190 U.S. 267, 272 (1903) The court further held that any homestead or cash entrant did not acquire title to the land within the boundaries of the right-of-way. Id. In 1915, the U.S. Supreme Court specifically considered the 1875 Railroad Act and ruled the right-of-way was “…a limited fee made on an implied condition of reverter….”, when the railroad ceased using the land for rail purposes. The court also ruled that such limited fee “…carries with it the incidents and remedies usually attending the fee…”. Rio Grande Western Railway Co. v. Stringham 239 U.S. 44, 47 (1915) Presumably, such “incidents and remedies” would include the right to transfer the right-of-way to a county or state to be used as a public highway. However, in 1942, the U.S. Supreme Court overruled Stringham holding the right-of-way is an easement. Great Northern R. Co. v. U.S. 315 U.S. 262, 278 (1942) This latter ruling remained the settled law on the subject for several decades.
(C) Private Landowner Grants: The railroad was always free to purchase a right-of way from the owner of the land over which the track line would be constructed and operated. Early settlers welcomed such rail service as it would provide more efficient farm-to-market transports of livestock and crops. In many instances the conveying deed specifically stated that an easement (a/k/a “right-of-way”) was being created. Often, the deed would contain a right of reverter or some other language indicating the easement was tied to its use solely for railroad purposes. (“To be used so long as a railroad is operated thereon and, upon cessation or abandonment thereof title shall automatically revert to the grantor or his successors and heirs.”) Just as often, however, the deed was silent. It might only specify that a strip of land was conveyed for “construction, operation and maintenance” of a railroad without providing a reverter or description of legal interest.
C.R.S. 38-30-107 provides:
“Every estate in land which is granted, conveyed, or devised to one, although other words necessary to transfer an estate of inheritance are not added, shall be deemed a fee simple estate of inheritance if a lesser estate is not limited by express words or does not appear to be granted, devised or conveyed by operation of law.”
Under this language, a Colorado deed captioned as a “right of way grant” or, in its text, the strip of land was described as a right-of-way would be interpreted as conveying only an easement. Lincoln Savings and Loan Ass’n v. State 768 P.2d. 733, 735 (Colo. App. 1988) (State Land Commission issued a patent captioned “Deed for Right of Way”. Such deeds are generally construed as easements, and not fee interests) The court cited to Board of County Commissioners v. Morris 362 P.2d. 202 (Colo. 1961) On the other hand, deeds purporting to convey a strip of land which do not contain additional language limiting the estate are generally construed as passing a fee estate. Lincoln Savings (Supra at Pg. 735) citing Radetsky v. Jorgensen 202 P. 175 Colo. 1921). In Barnes v. Winford 833 P.2d. 756, 757 (Colo. App. 1992) a similar deed (albeit one having a specific right of reverter) was found to have created a fee simple determinable.
If the private deed created a fee simple interest then we must consider whether it was a conditional estate: i.e., a fee simple determinable (with or without an expressed right of reverter) or a fee simple subject to a condition subsequent. The two estates are separate and distinct.
“If the purpose is to compel compliance with a condition by the penalty of forfeiture (then) an estate on condition arises, but if the intent is to give the land for a stated use, the estate to cease when that use or purpose is ended, no penalty for a breach of condition is involved, since the purpose is not to enforce performance of a condition, but to convey the property for so long as it is needed for the purpose for which it is given and no longer … a fee on limitation results….”.
School Dist. No. Six in Weld County v. Russell 396 P.2d. 929, 931-32 (Colo. 1964); City of Lakewood v. Armstrong 419 P.3d. 1005, 1012 (Colo. App. 2017)
Fee simple determinable estates in land are automatically terminated upon the defeasing condition: e.g., cessation of an expressed use. No action need be maintained for re-entry. Barnes (Supra) Fee simple estates subject to a condition subsequent or a right of reverter terminate only if there is affirmative action timely taken within the limitations period. Kanarado Mining & Development co. v. Sutton 539 P.2d. 1325, 1328 (Colo. App. 1975) Failure to take such action within the applicable limitations period can result in loss of the right of reverter. Id.
In either conditional estate, the grantee gets the entire fee simple absolute title and the grantor retains no interest in the property. City of Idaho Springs v. Golden Saving and Loan Ass’n 480 P.2d. 847, 849 (Colo. App. 1970) cert denied.
Defeasing events lead to forfeiture of estates in land and thus are strongly disfavored and must be strictly construed since they effect a forfeiture of land. Nielsen v. Woods 687 P.2d. 486, 489 (Colo. App. 1984) As a result, such defeasing conditions must be clearly created by language inserted into the instrument of conveyance. Allen v. Nickerson 155 P.3d. 595, 599 (Colo. App. 2006) If that language is ambiguous then the language is construed in favor of the grantee. Kanarado (Supra) A grant is strictly construed against interpretation as being subject to conditions subsequent. Jelen and Sons, Inc. v. Kaiser Steel Corp. 807 P.2d. 1241, 1244 (Colo. App. 1991)
Conveyances of the Railroad Right-of-Way / Statutes: By the 1920’s, auto transports overshadowed rail service. Many railroad lines were abandoned. Congress recognized the utility in having such abandoned railbeds converted to public highways. In 1920, Congress enacted 43 U.S.C. 913, authorizing railroads to convey their rights-of-way to any State, county or municipality “…to be used as a public highway or street…”.
In 1922, Congress enacted 43 U.S.C. 912 (March 8, 1922, Chap. 94, 42 Stat. 414) requiring reversion of title to abandoned railroad rights-of-way to the U.S. government, unless those lands had been patented to private citizens. There were two exceptions to the statute. First, reversion did not apply to any “…part (of the right-of-way) as may be embraced in a public highway legally established within one year after the date of forfeiture or abandonment)…..” Second, “…this section shall not affect any public highway on said right of way on March 8, 1922….”.
In 1958, Congress enacted 23 U.S.C. 316 (Pub.L. 85-767, August 27, 1958, 72 Stat. 915; Pub.L. 105-178, Title I, §1212(a)(2)(A)(i), June 9, 1998, 112 Stat. 193) The statute was quite direct:
“The consent of the United States is given to any railroad … company to convey to the State transportation department of any State, or its nominee, any part of its right of-way or other property in that State acquired by grant from the United States.”
In 1998, Congress enacted the Rails to Trails Act, allowing the conversion of abandoned rail lines to hiking and cycling trails. 16 U.S.C. 1241-1251. (Pub.L. 98-11, 97 Stat. 48 (1983); amended by Pub.L. 90-543 82 Stat 919) This established the federal policy to avoid abandonment of track lines by allow them to be “railbanked” and used as recreational trails.
These statutes are premised upon a long-standing interpretation that the U.S. government retained a reversionary interest in rights-of-way granted under the 1875 Railroad Act. Rio Grande Western Railway Co. v. Stringham 239 U.S. 44, 47 (1915) (Holding that the grant of right-of-way was a limited fee made on an implied condition of reverter to the United States upon cessation of railroad use.) Barney v. Burlington Northern R. Co. Inc 490 N.W.2d. 726, 730-31 (S.D., 1992) specifically so held. (The United States retained a reversionary interest in railroad rights-of-way) The South Dakota decision reasoned that these federal statutes would be nullified if the U.S. had not, in fact, retained a reversionary interest. See: State of Idaho v. Oregon Short Line R. Co. 617 F.Supp. 202, 212 (D.C., Idaho 1985); See also: Vieux v. East Bay Regional Park Dist. 906 F.2d. 1330, 1337 (9th. 1990) Since the U.S. held a reversionary interest, then it could cut off any reversionary hopes of patent holders (or their successors) by directing the transfer of an abandoned track line to a public entity as a public highway.
In 2014, the U.S. Supreme Court affirmed the Great Northern ruling but took it one step further. In Marvin M. Brandt Revocable Trust v. U.S. 572 U.S. 93, 109 (2014), the court confirmed that the right-of-way under the 1875 Act was a mere easement and not a limited or defeasible fee. The court also held that, absent contrary language in the U.S. Patent (e.g., taking subject to a railroad right-of-way), the federal government had conveyed away any and all reversionary interests. The court considered the above-cited statutes, but said (572 U.S. at Pg. 109):
“…these statutes do not tell us whether the United States has an interest in any particular right-of-way; they simply tell us how any interest the United States might have should be disposed of. For pre-1871 rights of way in which the United States retained an implied reversionary interest, or for rights of way crossing public lands, these statutes might make a difference in which happens to a forfeited or abandoned right of way.2 But if there is no ‘right, title, interest, (or) estate of the United States’ in the right of way, 43 USC 912, then the statutes simply do not apply.”
The court summarily disregarded the Rails to Trails Act (16 U.S.C. 1248), noting that that Act sought to revive a reversionary interest the court was striking down. “That policy shift cannot operate to create an interest in land that the Government had already given away.” 572 U.S. 110
The Incidental Use Doctrine: Beginning in 1875, the courts recognized the right of a railroad to lease or license to third parties the right to engage in activities within the railroad’s right-of-way so long as the third party’s activities do not obstruct free and safe passage of the train. Grand Trunk R.R. Co. v. Richardson 91 U.S. 454, 459 (1875). Today, this “incidental use” doctrine is well-recognized in both federal and state courts. International Paper Co. v. MCI WorldCom Network Servs. Inc. 202 F.Supp.2d. 895, 902-03 (W.D. Ark. 2002); Mellon v. Southern Pac. Transp Co. 750 F.Supp. 226, 230 (W.D. Tex. 1990); Mitchell v. Illinois Cent. RR Co. 51 N.E.2d. 271, 274 (Ill, 1943); McSweyn v. Inter-Urban Ry. Co. 130 N.W. 2nd. 445, 448-49 (Iowa; 1964); Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Lines Ass’n 126 P.3d. 16, 27 (Wash. 2006).
Colorado recognized the doctrine in Durango & Silverton Narrow Gauge Railroad Company v. Wolf 411 P.3d. 793, 796 (Colo. App. 2013) In 1881, the Durango & Silverton railroad acquired its right-of-way directly from the landowner, rather than under the 1875 Railroad Act. In 2009, it agreed to grant the City of Durango a non-exclusive easement to use a portion of its right
of-way adjacent to the railroad tracks as a public recreation trail. The City of Durango paid $1 Million for the rights. By allowing the public to use a designated trail within its right-of-way, the railroad promoted safety. Cyclists and hikers would no longer be walking or cycling on the tracks.
“We apply the incidental use doctrine for the first time in Colorado. That doctrine states that a railroad may lease a portion of its right-of-way where the use is incidental to or not inconsistent with the railroad’s continued use of its right-of-way for railroad purposes.”
“After 1871, the government granted the railroads a lesser interest in the property, often referred to as an exclusive use easement.” Vieux v. East Bay Regional Park Dist. 906 F.2d. 1330, 1333 (9th, 1990) citing Great Northern (Supra).
This is an outgrowth from Article 15, §4, Colorado Constitution (Railroads shall be public highways and all railroad companies shall be common carriers)3 The scope of such a “public highway” was described in Donovan v. Pennsylvania Co. 199 U.S. 279, 294 (1905) (Although the railroad’s functions are public in their nature, the company holds legal title to the property covered by the right-of-way) Stated differently, railroads retain private property rights in their rights-of-way. Kansas Pac. Ry. Co. v. Ward 4 Colo. 30, 33 (1877) (“Railway company has the undoubted right to the exclusive use of its roadway, except a public crossing, for the unimpeded passage of its trains.) See: Denver & S.L. Ry. Co. v. Pacific Lumber Co. 278 P. 1022 (1929). The right-of-way as private property continues to be recognized at present. Sinclair Marketing Inc. v. City of Commerce City 226 P.2d. 1239, 1244 (Colo. App. 2009).
Priority of Claims / Homesteads and Railroads: In a series of three cases the U.S. Supreme Court laid out the relationship between filing the profile and entering or purchasing public lands. In Jamestown & Northern Railroad Company v. Jones 177 U.S. 125 (1900), the railroad surveyed a route in 1881 and constructed its track line in 1882 over unsurveyed federal lands. The court held that actual construction of the track line in 1882 was sufficient notice to the pre-emption claimants of the railroad’s right-of-way under Sec. 4 of the Act (43 U.S.C. 935), causing them to take the lands subject to the railroad’s easement. 177 U.S. at Pg. 130
In Minneapolis, St. Paul and Sault St. Marie RW v. Doughty 208 U.S. 251 (1908), Mr. Doughty, on June 25, 1892, Doughty registered this homestead entry and was issued his U.S. Patent on November 4, 1899. In October, 1891, the railroad made a preliminary survey of its intended line which included the Doughty land. On July 20, 1892, the railroad filed its profile with the local GLO office which was approved by the Secretary on October 14, 1892. The railroad had not built its track line prior to the Secretary’s approval. The court held that, in the absence of actual construction, the railroad’s right-of-way was not perfected until it filed the profile and the Secretary had approved it.4 Doughty thus had the land without the burden of the railroad’s right of-way.
In Stalker (Supra) the issue was not the track line but the location of a station ground consisting of 12 acres. The railroad filed its profile map which was approved on February 17, 1888. The profile map did not include the station grounds. On September 12, 1888, after constructing the rail line and the station area, the railroad filed a amended profile which was approved on December 15, 1888. The GLO clerk, however, did not note the approval on its maps and subsequently misplaced and lost all the maps. Joseph Reed (Stalker’s predecessor-in-interest) filed his Pre-Emption statement on October 18, 1888 and on August 4, 1891 was issued a U.S. Patent. The actual track line was not sited on Mr. Reed’s land but the 12 acres for the station grounds were on his land. The court held that the amended profile related back to the approval of the original profile. The court held that the adoption of the surveyed route and the filing of the amended profile were acts sufficient to definitively locate the right-of-way and that, while the approval of the amended profile was pending, all other actions should not be have taken. Stalker was thus subject to the 12 acres for the railroad’s station grounds. 225 U.S. at Pg. 152.
Researching the Right-of-Way Locations: For accuracy of analysis the road researcher needs the precise location of the railroad right-of-way. This is not always possible.
Rights of way created under R.S. 2477 were not recorded under the Grantor-Grantee Indices of C.R.S. Sec. 38-41-109. They were put, instead, in a County Road Book and those books have a checkered history of retention. Similarly, the railroad profile under the 1875 Railroad Act was not recorded with the County Recorder. They were kept, instead, by the Government Land Office, a division of the Department of Interior. It thus behooves the landowner to identify and locate railroad rights-of-way that had been created under the 1875 Railroad Act. But where does one find the old profiles?
All federal records are deposited with the National Archives and Records Administration. (NARA) NARA has two general offices: Reston, VA, and Denver, CO. The Denver office is actually located in Lafayette, CO. The offices are closed to the public due to Covid 19. The researcher can log on to NARA and review the NARA Catalog. Maps under the 1875 Railroad are collected under ARC607764 and ARC565960. A written request can be sent to denver.archives@nara.gov Be specific in what you are seeking: e.g., Profile Map; XYZ Railway Company, providing the filing and approval date if you have it. An e-mail response will come to you advising where the maps are held: e.g., College Park, MD. Another e-mail address will then be provided so that you may communicate directly with a researcher (who is working off-site). Sometimes the map is digitalized and could be sent to you. Otherwise, you must hire a local researcher who will then personally review the maps, take photographs and send you the photos. (Assuming the office is open and not closed for Covid.) NARA’s website has a list of independent researchers who may be employed for that purpose. www.archives.gov/research/cartographic
The failure to accurately describe the location, width and length of an easement does not affect the validity of the easement. Isenberg v. Woitchek 356 P.2d. 904, 907 (Colo. 1960) If the wording of the easement is unclear the court must look to the historical use of an easement to determine its location, width and course. Gjovig v. Spino 701 P.2d. 1267, 11268 (Colo. App. 1985); Accord: Pickens v. Kemper 847 P.2d. 648, 650 (Colo. App. 1993) Alternatively, the parties may mutually agree on the location or, otherwise, the location will be determined by a court. Stevens v. Mannix 77 P.3d. 931, 933 (Colo. App. 2003) In Armstrong (Supra), the Court of Appeals confirmed each of these decisions as the continuing and governing rule on easement locations. 419 P.3d. at Pg. 1009-1010
The road researcher must locate the railbed using aerial photos, historic photos, maps made by USGS, USFS and BLM, retrieval of recorded deeds conveying rights-of-way or “defeasible fee simple” estates,5 other “track maps” constructed by the railroad that show the survey stations of the rail line together with crossings, stations, water tanks, sidings and depots.
Ultimately, you must go in the field with “boots on the ground”. Railbeds are not difficult to find. They are raised above the surrounding ground level and level on top for railroad ties and rails. GPS the center line of the railbed and then tie in the existing location with all cartographic references you may have.
2021 James A. Beckwith
Sources / Footnotes:
1 The Gunnison Country; D. Vandenbusche; 1970, Sundance Printing; Pg. 72-73
2 If the railroad line is a public highway, then the railroad could legitimately create rights-of-way over unreserved public lands pursuant to R.S. 2477, which authorizes the right of way for creating public highways.
3 In Stalker (Supra) the Supreme Court summarized its holding in Doughty. “This court held that the mere surveying and staking of a route was not such actual possession and appropriation as to give effect to the grant….” 225 U.S. at Pg. 149
4 When a fee simple transfer is limited to a specific purpose (e.g., operation of a railroad), then fee simple estate terminates (“defeases”) when the railroad is no longer operating or has been abandoned. __________________