Court rulings favor Rails-to-Trails project

STEVE SMITH
Press Staff Writer
Published November 04, 2002 12:40 PM CST

Ohio's Rails-to-Trails program has received a boost from a pair of court rulings dealing with the rights of the owners of properties through which the abandoned rail lines pass.

Property owners say the railroads had easements through area farmland and lost those easements when they pulled up the rails and wooden ties and abandoned the land.

Clark County Judge Gerald F. Lorig disagrees, but the property owners say they will continue the fight.

Judge Lorig has ruled that the railroads had ownership of the lines that county park boards and the Rails-to-Trails organizations intend to use for a bicycle trail from the Ohio River to Lake Erie.

Following the Clark County decision, Madison County Judge Robert D. Nichols disposed of a similar case, ruling that the same issues are involved.

The lawsuits focus on a part of the rail line that runs from South Charleston to London.

Property owners Steve and Donna Allison, of 3735 U.S. 42 SW, London, and John R. Dunkle, of 25 Lotspeich Ave., London, who owns property next to the Allisons, filed suit against the Consolidated Rail Corp. (Conrail), Pennsylvania Lines LLC and Norfolk and Southern Railroad.

The property owners said the defendants and their predecessors abandoned the rail line in 1993. They said that Conrail stopped maintaining the line and walked away. As a result, the plaintiffs claimed ownership of the thin section of land running through their properties.

The railroads, replying to the Madison County lawsuit, said that Pennsylvania Lines owns the strip of land and that the court in London had no jurisdiction because the local case "duplicates the issues currently being determined by the Court of Common Pleas for Clark County."

The Clark County and Madison County park district boards filed eminent domain actions against Conrail and "all others" with claims on the land in 1999.

The Madison County Metropolitan Park Board specifically sought to appropriate the strip of land as it passes through Paint and Union townships and into the city of London "for public use" as part of the Rails-to-Trails project.

A number of property owners have fought the trail, complaining that it would violate their property rights by bringing an undesirable element onto their land.

The eminent domain suits were filed at the courthouse in Springfield but they applied to the rail line in both counties. Judge Nichols ruled that when Dunkle filed an answer in Clark County Common Pleas Court, along with a counterclaim for ownership of the property, the plaintiffs "invoked the jurisdiction of that court and submitted to it."

In Clark County, Judge Lorig ruled in favor of the railroads on Oct. 2, deciding that Dunkle "has no interest" in the property.

Lorig dismissed the Dunkle claim, saying that a predecessor of the more modern railroads -- the Columbus and Xenia Railroad -- "acquired title" to the property in 1849.

"Mr. Dunkle's predecessors were paid for these appropriations a century and a half ago," Lorig ruled, adding that the rail line was "excluded" from all subsequent title transfers involving the surrounding farmland.

In his earlier decision, Judge Lorig ruled that the Allisons "have failed to establish a legal interest in the abutting railroad lands and therefore lack standing in this eminent domain action."

After taking judicial notice of the Clark County rulings, Judge Nichols upheld a defense motion seeking a summary judgment in favor of the railroads in the Madison County case.

"There can be no question" that the cases in the two counties "involve the same issues, the same parties and the same property," Nichols said in a ruling filed Thursday in the office of clerk of courts Marie Parks.

"This court should not, and will not litigate a collateral attack on a sister court's prior exercise of jurisdiction on the same subject matter," Nichols added.

The judge said the plaintiffs never objected to Clark County's claim of jurisdiction, but he also pointed out that Dunkle and the Allisons still have the option of appealing the jurisdictional questions.

They have the option also of appealing the rulings out of Clark County Common Pleas Court.

The Allisons' attorney, Tony Logan of Columbus, confirmed on Friday that his clients will take the Clark County decision to the Second District Court of Appeals.

Logan said he was not prepared to comment on the Madison County decision because he had not yet seen it.

Logan pointed out that the proposed bike path, now an overgrown mound of rocks where the rails used to lay, is just 400 feet behind the Allisons' back door.

If the property owners lose on appeal, the park boards will be free to finish installing the bike trail, if they can find the money to do so.

Backers hope to install 462 miles of trails and reported nearly 200 miles have been completed. A "Heritage Trail" from Hilliard to Plain City and a southern portion of the trail from Milford to Cedarville are complete.

The Rails to Trails organizations had hoped to complete the South Charleston to London portion of the trail by this year.

Steve Smith can be contacted at (740) 852-1616, 1-800-282-3838 or by e-mail at news1@madison-press.com