Judge rules for Country Lane residents in railroad suit

Sean C. Morgan

The residents of Country Lane won a ruling in their favor against Albany & Eastern Railroad Company last week, winning an easement to cross A&E’s tracks without paying the company for that access.

Linn County Circuit Court Judge David E. Delsman issued his ruling in an opinion letter dated Jan. 13, granting each defendant an easement conforming to the current location and dimensions of the existing crossing. From the date of the letter, the parties will share maintenance costs, liability risks and other rights and responsibilities.

Delsman agreed with the defendants in the lawsuit, the residents of Country Lane, that residents of Country Lane have used the crossing an an “open, notorious and continuous” manner in a way that was “actually adverse to the interests of the railroad.”

“The court finds that this adverse use continued continuously and that by 1973 the use had ripened into a prescriptive easement,” Delsman said in his opinion. “The Country Lane residents began using the Murray crossing at least as early as 1953. The last Country Lane property owner would have started using the cross no later than 1963.”

Events leading up to the case began in the summer of 2012 when property owners along the A&E line between Lebanon and Sweet Home received letters from the company, threatening to close the crossings from Highway 20 to their homes unless they paid fees to use the crossings.

The letter informed owners that they needed to have a $1 million insurance policy and pay a $720 permit fee, which included an annual “maintenance fee” of $120, to maintain their railroad crossings.

Country Lane residents refused.

A&E filed a lawsuit on Jan. 25, 2013 naming the 14 Country Lane defendants, representing eight properties, to stop residents from crossing its tracks to their homes unless they agreed to its permit. The defendants cross the track to reach Highway 20 across from Harmony Road. The case went to trial in August.

Mike Martell, who has served as spokesman for the neighbors, said they feel vindicated.

“Justice has been served, and (A&E’s) got a dose of it. I’m feeling great. It said its tracks legally blocked us from our homes. It said it could put up barriers and charge anything it wanted to charge for us to get to our homes.”

He said after the railroad’s lawsuit “rendered our homes worthless,” they were forced to fight it.

“I vowed that we wouldn’t pay one dime to the railroad and now we won’t. We faced great odds and found a great lawyer who worked with us. We beat a railroad. That only happens when good people unite and fight for a just cause. Its been a three-year battle for our homes and we are so grateful that justice was finally done.”

Country Lane attorney Dan Armstrong, based in Corvallis, said the issue was preserving the prescriptive easement the residents already had. Had they signed the permit, they would have signed away the easement.

““It was never about the $120,” he said. “This was bet-your-home litigation. The odds and costs were all stacked against these folks, and fighting back was risky. But they banded together as neighbors and beat a bully. This ruling should stop this train from trying to cause similar trouble to other neighbors along its tracks.

“We’ve always said that in 1928, no one sells two acres to a railroad and knowingly landlocks 70 acres. There weren’t even any cars out there back then. We agree with Judge Delsmann. We agree with Abe Lincoln, who said no one should overhaul ancient deed defects to stir up strife to put money in one’s pocket.”

He noted that special legislation, Senate Bill 260, was passed “to discourage this railroad from taking these actions against such neighbors. The railroad just kept going. The railroad pushed things all the way to trial, where it lost. It should now pay for the harm it caused its neighbors.”

Efforts to reach attorney Tre Kennedy, who represented the railroad, on Monday and Tuesday were unsuccessful.

Neighbor Shirley Trahan, who lives slightly west of Country Lane, has also had difficulties with the railroad’s policies.

“When this all got started I called the railroad. It said I had to stop crossing its tracks to get to my home and that it could put up concrete blocks to stop me from crossing its tracks.

“I asked what would happen if I parked on the road and climbed over the blocks to get to my home. The railroad said it could have me arrested for trespass. I hope that this lawsuit will stop the railroad from doing such things in the future.”

“The bottom line is this, this exempts everybody,” Martell said.

At trial, Armstrong had argued that the railroad was seeking to exploit a mistake made in a 1928 deed. He argued that the neighbors had crossed the tracks since at least 1953 in a manner that was open and adverse to the interests of the railroad.

Delsman outlined the facts of the case in his opinion, finding that in 1910 Joseph Strickler divided roughly 75 acres near the Santiam River into two parcels. He deeded the northern parcel to his daughter, Edna Strickler Murray, and the southern parcel to his son, Robert H. Sharinghousen.

In 1928, Sharinghousen and Murray each sold a portion of their property to A&E’s predecessor. Murray retained an easement across the railroad property, providing access to the highway. Sharinghousen did not, warranting to A&E’s predecessor that the property was free from all encumbrances.

Sharinghousen deeded the strip to the railroad for a buck, Armstrong said. He made a mistake, and “he landlocked himself.”

In 1942, Sharinghousen divided his property into eight lots, creating the Country Lane neighborhood where the defendants live today. Since the creation and development of the Country Lane neighborhood, its residents have come and gone to and from their property across the railroad at the crossing located on the old Murray easement.

By 1953, houses had been placed on three of the lots. All eight lots were occupied by 1963. Their only means of access was across the railroad tracks at the Murray easement.

Two early residents testified in the case that access across the tracks was never restricted, and residents didn’t feel like they were trespassing or needed permission to cross the tracks. The deeds for five of the eight lots contained easement language that purported to grant a right to cross the railroad property.

“It is clear that, from at least 1953, the railroad treated the crossing as a public crossing,” Delsman wrote in his ruling. “The railroad has always maintained the crossing at its own expense. The railroad installed crossbuck signs indicative of a public crossing. There is no evidence that restrictive signs were installed, such as ‘no trespassing’ or ‘private crossing, access restricted.’ Beginning in 1970, the crossing was erroneously listed as a public crossing by the U.S. Department of Transportation.”

A change came in 2012, after A&E purchased the railroad in 2007 and the underlying land in 2012. The company reviewed its records and inventoried crossings. It discovered that the old Murray easement did not provided deeded access to Country Lane properties and attempted to negotiate a permit with the residents, requiring a permit fee and an annual maintenance fee. After Country Lane residents refused to pay, A&E revoked permission for Country Lane residents to use the crossing, posting new signs labeling it as a “private crossing” in 2012.

To prove a “prescriptive easement,” Delsman ruled, the residents would need to show open, notorious and adverse use for a continuous period of 10 years. The parties in the case agreed that the crossing had been used by the defendants in an “open and notorious manner” since the establishment of the neighborhood.

“The only issue in dispute was whether defendants’ use was adverse or permissive,” Delsman said.

The plaintiff argued that the use was permissive, Delsman said, similar to cases in which a landowner builds a road on his property and another person uses that road, referred to as “common road” cases.

Delsman said this is not a common road case.

“The crossing was not built to benefit the railroad,” Delsman said. “The railroad does not use the crossing. The residents of Country Lane are not incidental users of a roadway that was constructed by the railroad for the benefit of the railroad. There is no presumption of permissive use.”

Further, Delsman said, there is no evidence in the record that the railroad granted permission to residents to use the crossing.

“What is apparent from the evidence is that at some point, the railroad began operating under the erroneous assumption that the Country Lane crossing was a public crossing,” Delsman said. “As a result of that mistake, the railroad took no action to limit unauthorized use of the crossing. It allowed complete and unfettered crossing rights. It maintained the crossing for the benefit of the public and Country Lane residents at its own expense.”

“Adverse use” is contrary to the interests of the landowner, Delsman said. The use was “actually adverse” to the interests of the railroad.

Delsman said that Armstrong has 30 days to file a judgment in accordance with the opinion. After that, Armstrong will seek attorney fees from A&E.

According to the ruling, the residents and the railroad will share the cost of maintenance. Martell said that’s all the residents have wanted all along, and they’re happy to continue maintaining the crossing as they have done for years.

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