Homeowners, railroad await judge’s decision

Sean C. Morgan

Following a hearing held on Feb. 19, Linn County Circuit Court, Judge David E. Delsman will return a decision on a motion for summary judgment in the lawsuit by the Albany and Eastern Railroad Company against Country Lane homeowners.

A&E has sued 14 homeowners of eight Country Lane properties after they refused to pay a $600 fee for a crossing permit and an annual maintenance fee of $120. The defendants requested summary judgment.

“We’re just waiting on the judge to make a decision,” said Mike Martell, one of the homeowners named in the lawsuit. “He said he had a lot to chew on, on both sides.”

Martel hopes to see it in the next couple of days, he said. “I shouldn’t speculate, but if you’re going to base it on the facts, we prevail.”

The railroad claims that the residents of the eight homes are trespassing because they have been placed on notice that they have no easement to cross the railroad’s property but continue to do so. The railroad contends that the residents’ “unlawful crossing” of its property poses a risk of accident and damage, which has increased its own insurance premiums.

A&E is seeking damages, attorneys’ fees and court costs associated with the action.

Some 85 to 90 years ago, the Country Lane properties were a single 70-acre parcel, Martell said. The railroad was deeded two acres.

Back then, a handshake was better than a contract, Martell said. He has pointed out that along the rail line, some people were illiterate and signed with an “X.”

The owner was probably not thinking that the railroad would turn around and file a lawsuit, Martell said. After 85 years, the railroad “starts snooping out flawed records in the deeds.”

John Harcrow described it this way in an affidavit to the court: “The railroad told us that if it wins their suit, it’s going to sue all our other neighbors up and down the track. That doesn’t seem right. Not because of some mistake in an ancient deed. Not after what we’ve done over all the years. These are our homes.”

Harcrow has lived there since 1961 when there were four houses, he said. Over the past 53 years, the residents have continually used the crossing, day and night.

Residents have used the crossing for decades and have never paid a permit or maintenance fee.

Martell said he’s concerned that the company may have ulterior motives, with the passage of Senate Bill 260 last year.

That bill prohibits Connect V grant funding from the Oregon Lottery to Linn County railroads charging crossing fees.

Pursuing the fees indicates a rejection of millions of dollars earmarked for the rail company, Martell said.

Martell believes that the rail company can charge whatever it wants, amounts that property owners may not be able to pay. He points to one property owner who has agreed to pay but is struggling.

If the railroad increases the fees to $3,000 or $4,000 and she cannot pay, the company could file a lien on her property, potentially costing her the property.

The railroad, owned by the Rick Franklin Corporation, “had a chance to make millions,” Martell said; but instead it is pursuing the fee.

“About half of the deeds going up and down the railroad tracks include a deeded crossing,” said John “Tre” Kennedy, attorney for A&E. “Who’s to say if it’s an error? There’s absolutely no proof that it was an error. They’ve been crossing it for free for years.”

Although it could, the railroad is not going back and asking the property owners to pay for it, Kennedy said.

Albany and Eastern is trying to run the railroad the way other railroads are run by charging neighbors a small part of the cost of maintaining the crossing and insurance, he said.

The railroad cannot charge as much as it wishes, Kennedy said. A person without access can see a judge, who is charged under Oregon law to set a reasonable fee.

“Compared to other railroads, it’s so small, it’s really laughable that they make that argument,” Kennedy said. On a rail line in Portland, the permit fee is $1,500. On other rail lines, he has seen fees as high as $3,000.

“The bottom line is this about trying to create a partnership so they have skin in the game as well,” Kennedy said.

Maintaining crossings and insurance is expensive, and charging a fee helps prevent a small railroad like A&E from going bankrupt, he said.

The railroad is never going to keep residents from crossing the tracks, he said, but they should help pay for the crossing, the cost of maintaining it.