Missouri House Bill No. 1318, 2025 Regular Session

During the First Regular Session of the 103rd General Assembly of the State of Missouri, Representative Mark Nolte introduced House Bill No. 1318, which proposed to modify Section 60.510 of the Missouri Revised Statutes by adding to the duties of the State Land Survey within the Missouri Department of Agriculture, as follows:

To restore and monument the centerline geometry of all railroad rights of way within the state of Missouri that have been abandoned by the United States Surface Transportation Board (STB) or previously by the United States Interstate Commerce Commission (ICC)

For the public hearing conducted by the House Transportation Committee on March 25, 2025, I submitted the following written testimony:

Ladies and Gentlemen of the Committee – Thank you for this opportunity to offer written testimony on HB 1318. I oppose this bill.

   (1) First of all, is it appropriate for a state agency to use public funds to survey private property for the benefit of private persons or entities? Railroads are private entities and their rights-of-way are privately held. When a railroad right-of-way is abandoned, the property interest is either eliminated, as would be the case with an easement, or sold, when the original acquisition was in fee simple, or perhaps simply abandoned for someone else to claim. Thus, an abandonment results in the transfer of the property interest from one private owner to another private owner, unless the property interest is acquired by a government entity. How is it appropriate to require a state agency to survey private property for the benefit of a private owner?

   (2) Next, the additional duties proposed by HB 1318 are an unfunded mandate. The State Land Survey is funded by a $1 user fee, established in 1969 and collected by recorders of deeds (Section 59.319-3(1)). This fee has not changed since 1969, while costs have risen considerably since then and continue to rise. There were 25 staff members in 2000 (not counting the three positions funded by state parks), but that number has diminished to 12 in 2025. More duties were added in 2012, as well, but no additional funding was provided then either. How can an already underfunded agency with diminishing staff levels be expected to do more and more work without additional funding? You can add the extra duties, but if funding is inadequate to address the current work load, it is unlikely that the extra duties will receive much attention.

   (3) Further, HB 1318 does nothing toward providing the documentation to perform the additional duties. To do this work, it is absolutely necessary to have access to the right-of-way plans and other documentation that define the geometry and alignment of the right-of-way. Assuming this proposal is intended to be forward looking as well as backward looking, there needs to be some requirement to provide the needed documentation to the State Land Survey so that the work can be done.

   (4) Also, it would appear that this proposal is directed at railroad rights-of-way that have already been abandoned. That means all of those abandoned rights-of-way will have to be identified and records tracked down. This is a tremendous undertaking. If you want it done, provide the resources to do it! I estimate that dedicating one professional land surveyor and one technician full time to restoring and monumenting the centerline geometry of all railroad rights-of-way that have been abandoned in the state of Missouri will cost more than $250,000 per year for many years with appropriate upward adjustments to this cost each year.

   (5) Please, note that railroad rights-of-way that have been converted to “interim trail use” are not regarded as having been abandoned. Since this proposal only mentions abandoned rights-of-way, it would not apply to any rights-of-way that have been converted to “interim trail use.” Besides, rights-of-way converted to “interim trail use” are transferred to the trail sponsor, who should be responsible for any surveys needed on the property they hold. How is it appropriate to require a state agency to survey what belongs to some other entity?

   (6) Please, also note that, as worded, HB 1318 technically won’t apply to any rights-of-way within the state of Missouri, because neither the Surface Transportation Board nor the Interstate Commerce Commission abandon railroad rights-of-way. Railroad rights-of-way are abandoned by the railroad operators and not by the agencies that regulate them. The Interstate Commerce Commission (ICC) was created in 1887 and had a wide range of regulatory authority over railroads and other forms of interstate transportation. It was abolished in December 1995. The Surface Transportation Board (STB) is the federal agency that is charged with the economic regulation of various modes of surface transportation, primarily freight rail. The agency has jurisdiction over railroad rate, practice, and service issues and rail restructuring transactions, including mergers, line sales, line construction, and line abandonments. The STB also has jurisdiction over certain passenger rail matters, the intercity bus industry, non-energy pipelines, household goods carriers’ tariffs, and rate regulation of non-contiguous domestic water transportation. The STB was created on January 1, 1996. The ICC was and the STB is a regulatory agency. Neither own or operate railroads and, therefore, do not abandon railroad rights-of-way. In an abandonment proceeding the STB ensures that proper notice to rail users has been given, that any opposition to abandonment is addressed, that any offers of financial assistance have been considered, and that environmental, historic preservation or any other concerns are appropriately addressed before abandonment is consummated by the railroad operator.

*** I oppose HB 1318, believing it to be entirely inappropriate. I, therefore, urge this Committee to kill HB 1318.

This bill did not pass out of the House Transportation Committee during the 2025 Regular Session.

More information on this bill can be found at the following link:

https://house.mo.gov/Bill.aspx?bill=HB1318&year=2025&code=R

Nelson Rector: Hard Luck and Trouble

In January 1807, we find Nelson Rector providing assistance to his brothers, William Rector and Elias Rector, who were engaged in surveying the public lands in the Indiana Territory (Territorial Papers, Vol. 7, pgs 413-414 and Vol. 7, pgs 419-424). Nelson was often sent as a runner to deliver field notes and messages and to bring back money with which to carry on the work, but he was also gaining surveying field experience. In a letter to Jared Mansfield, Surveyor General of the United States, Elias Rector requested permission to allow Nelson to assist him in surveying, saying, “he has been some time in the woods with me & appears to Understand Surveying Sufficinly [sic] to execute the business with Correctness.”

In February 1810, William Rector, writing from Kaskaskia in the Illinois Territory, noted in a letter to Jared Mansfield, Surveyor General of the United States, that he had put Nelson Rector to work subdividing townships in the Illinois Territory (Territorial Papers, Vol. 16, pgs 76-80).

In July 1813, Nelson Rector was assigned work under his own contract as a deputy surveyor to survey and subdivide fifteen (15) townships in the Illinois Territory (Territorial Papers, Vol. 16, pg 351 and Vol. 16, pgs 355-356). He wrote to Josiah Meigs, Surveyor General of the United States, on November 1, 1813 from Township 5 South, Range 6 East of the Third Principal Meridian, indicating that “I left Shawnee Town on the 28th day of Oct[ober] for the Woods, and have been engaged in Surveying the U. S. lands since that time, and shall continue with all possible, energy untill [sic] I complete my District.” After making some observations about the area, he concluded his letter with a postscript, saying, “I should be glad to get a letter from you. Be so good as to drop me a line & direct to Shawnee Town and I shall get it. Excuse this scrall as it is late at night & by the light of the fire” (Territorial Papers, Vol. 16, pg 374).

Trouble was lurking for Nelson Rector, however, as we learn from letters sent to Josiah Meigs by Judge Stanley Griswold, writing from Shawnee Town, Illinois Territory, on March 10, 1814 (Territorial Papers, Vol. 16, pgs 401-402), and William Rector, Principal Deputy Surveyor in the Missouri Territory, writing from the United States Saline in the Illinois Territory on March 16, 1814 (Territorial Papers, Vol. 16, pgs 397-399).

William Rector reported to Josiah Meigs that his brother, Nelson Rector, had been severely wounded by Indians on March 1, 1814.

Judge Griswold recounted that “Mr. Nelson Rector left his hands at work on his Survey, and set out alone to come in to the Saline about 25 or 30 Miles with his Field-Notes, with a view to Plat &c – At about half way, while riding carelessly along upon the Goshen Road, near the Bank of the North Fork of the Saline Creek, wholly unsuspicious of Indians, he was saluted with a discharge, from beneath the bank, of several pieces, within a very short distance: One ball entered his left breast, and passing thro’ a small portion of the cavity of his body and the left shoulder blade, lodged next to the skin behind – another ball struck his left arm, and shattered the bone between his elbow and shoulder – a third ball passed thro’ the body of his horse near the forelegs, beneath the back bone, and above the vitals. The horse sprang to a great distance, but providentially Mr. Rector kept his seat, and the Indians continuing their fire, another ball grazed one of his temples, and knocked off his hat. – On turning his eye, he perceived their number to be from six to ten, but could not tell exactly, as his deplorable situation permitted but a slight glance, nor did he look at them again – They, however pursued him a good distance, and it seems a miracle that he escaped. From the glance he had of them they appeared to be Kickapoos, and all young men: his horse held out beyond expectation, and brought him to a Fortification three miles from the Saline, but, on the way, Mr. Rector was obliged to use every method to save himself – one arm dangling by his side, with the hand of the other he was obliged to grasp the saddle to save himself from falling thro’ extreme faintness, and other affections produced by his wound. In this situation, taking the bridle in his teeth, he lost some of them by the stumbling of his horse – he thinks that if he had not been on a Spanish Saddle he must inevitably have fallen and lost his life.”

William Rector added that “in this miserable plight he rode twelve miles to a Fort three miles from this place [the United States Saline], when he got there, he was so much exausted [sic] with the loss of blood that he could scarcely stick on his horse. The same evening he was brought by men on a litter to this place, since which he has suffered very much with his wounds & part of the time very high fevers. But I am happy to add that for the two last days he has been nearly free from fever & pain, that a supperation [sic] has taken place in both his wounds, discharge freely and his surgeons say look very favorable. I think he is entirely out of danger, tho it will be several weeks before he gets entirely well – Such is the opinion of his Surgeons.”

Judge Griswold went on to note that “the men who went out in pursuit of the foe discovered many traces of Indians, but thought it most prudent to hunt up Mr. Rector’s Surveyors, whom they found pursuing their business, without any suspicion of danger, and brought them in, with one or two of the most exposed families.”

William Rector went on to note that “Nelson desires me to present his respects to you, and inform you that before he received his wounds he had surveyed the exterior boundaries of all the Townships in his district, and had subdivided into sections &c one Township & part of another. He wishes me also to say to you that he is determined to complete the Surveying you assigned to him as soon as possible that notwithstanding his ill luck he hopes to get the whole done before the expiration of the time mentioned in his contract with you.”

On March 4, 1815, Nelson Rector, writing from Saint Louis in the Missouri Territory (Territorial Papers, Vol. 17, pg 143), reported to Edward Tiffin, Surveyor General of the United States, that “I am (& have been for some months past) useing [sic] every exertion in my power to comply with the contracts I entered into with Josiah Meigs Esqr late S. Genl of the U. S. & shall comply fully if not driven from the Woods by the hostile bands of Indians that are continually lurking on our Frontier & who have given me greate [sic] trouble pain & expence [sic] in executeing [sic] my business; as they wounded me so miserably last March & have latterly driven in my assistants.”

He went on to note that “I have now procured a Guard of Rangers from the comanding [sic] officer of this District & am in a fair way of completeing [sic] my contract, if the guard is continued I shall finish by the 1st of April next; as soon as I get my contract completed I shall set out for your office with a return of my surveys.”

On June 25, 1815, writing from Cincinnati, Ohio (Territorial Papers, Vol. 17, pgs 192-194), Nelson Rector notified Edward Tiffin that he had “been waiting very impatiently several weeks, for my Brother William Rector, as soon as he arives [sic] I shall set out for your office in order to make the residue of the returns of the Surveying done pursuant to my contracts with Josiah Meigs Esqr late Surveyor General of the United States.”

Continuing in his letter, he felt the need to defend himself against slanderous accusations he believed to have been made by John Messenger, another deputy surveyor in the Illinois Territory. Concluding his exposition on the matter, he asked, “did I not finish my contract last winter under the most trying circumstances ... I surveyed Sir without a guard (which is well known in the Country where I live) under the very muzzles in a manner of the most ferocious & inhumane enemies, to the Human Family I mean the Savages. I have been shot to peaces [sic] (comparitively [sic] speakeing [sic]) by the Indians & I have completed two very important contracts of Surveying for my Government since the Indian War & in a Woods they frequented & murdered seven or Eight People at the time I was performing my duty.”

On July 21, 1815, Edward Tiffin reported to Josiah Meigs, Commissioner of the General Land Office, that “the three Mr Rectors are all here [in Chillicothe, Ohio], but two of them are ill with fevers” (Territorial Papers, Vol. 15, pg 71).

A few days later on July 26, 1815, Edward Tiffin sent to Josiah Meigs a copy of instructions for review that he had prepared for William Rector, pertaining to establishing the principal meridian and base line for the Missouri Territory and then beginning the surveys for the military bounty lands (Territorial Papers, Vol. 15, pg 72 and Vol. 17, pg 203).

As part of these surveys, Nelson Rector, in partnership with William L. May, contracted on October 25, 1815 to lay off and subdivide townships south of the Base Line of the Fifth Principal Meridian in Ranges 1 and 2 East (Territorial Papers, Vol. 15, pg 91).

William Rector, as Principal Deputy Surveyor of the Missouri Territory, reported to Edward Tiffin, Surveyor General of the United States, on January 15, 1816 that Nelson Rector had died at the mouth of the St. Francis River on November 17, 1815 (Territorial Papers, Vol. 15, pgs 103-104). John Messinger, in a correspondence with Tiffin, dated January 12, 1816, noted that Nelson Rector had died by suicide (Territorial Papers, Vol. 17, pgs 283-284). Thomas Sloo, Register of the Land Office at Shawneetown in the Illinois Territory, writing on January 8, 1816 to Josiah Meigs, Commissioner of the General Land Office, reported that, “We have just Recd News of the Death of Nelson Rector. Report says [he] went on to the Arcansaw [sic] to Survey and their [sic] Blew out his own Brains” (Territorial Papers, Vol. 17, pgs 276, 278).

Source: The Territorial Papers of the United States, compiled by Clarence Edwin Carter, U. S. Government Printing Office

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original composition by Steven E. Weible

A Collection of Information for the Katy Trail and Rock Island Trail in Missouri

 I've put together a collection of information pertaining to the Katy Trail and Rock Island Trail in Missouri and it is now available at the following link:

https://www.missourisurveyor.org/resources.php

Also available are the parcel indexes that pair with the Missouri, Kansas and Texas Railroad Company's track maps.

Boundary Survey of General Series Survey 2969 in Missouri: Soulard vs. General Land Office

There has been a lot of interest lately in the private land claim that was confirmed to Peter Delassus Deluzieres and which is now known as General Series Survey 2969 (also known as U. S. Survey 2969). It is located in Farmington, Missouri, and since there has been so much speculation, I thought it would be interesting to examine and compare the survey performed by Antoine Soulard in 1799 under the authority of the Spanish government and the survey performed by William Bartlett in 1835 under the authority of the United States General Land Office. I personally found the comparison to be very enlightening and instructive, so I thought I would share it.

To review the basic background information, in 1793, Peter Delassus Deluzieres had entered into a five year contract with the Spanish government to deliver thirty thousand pounds of lead. He, therefore, petitioned the lieutenant governor of Upper Louisiana on March 3, 1795 for a grant of land of one league square, being equal to 7056 arpents (French measure) or 6002.5 acres (English measure). On April 1, 1795, Lieutenant Governor Zenon Trudeau conceded the tract of one league square of land as had been requested (American State Papers, Public Lands, Vol. 6, pgs 809-812).

Antoine Soulard had been commissioned as Surveyor General of Upper Louisiana on February 3, 1795, but had not yet set up shop and begun work (Territorial Papers of the United States, Vol. 14, pg 30). As a result, a few years passed before a boundary survey of the Delassus concession could be performed. On November 29, 1799, Antoine Soulard was directed by Lieutenant Governor Charles Dehault Delassus (Peter's son) to perform the boundary survey.

On March 5, 1800, Soulard certified that he had performed the survey on December 14, 1799 and that all measurements had been made with the perch of Paris of 18 feet in length, agreeably to the custom adopted in the province of Louisiana. He subsequently recorded his plan and notes in the Registre d'Arpentage (Archive of Surveys) as shown here:

Let's take a closer look at the information that Soulard provided.

First of all, we notice that the text is in French, so a translation is necessary.

Next, we notice that the only dimensions included are for the boundary. The courses and distances progress in a counterclockwise direction: beginning at the northeast corner, then West 84 arpents (lineal measure), South 84 arpents, East 84 arpents and North 84 arpents. One lineal arpent is equal to the length of the side of one square arpent of area. Twelve (12) lineal arpents are equal to thirty-five (35) chains (American State Papers, Public Lands, Vol. 4, pg 22), where one chain equals sixty-six (66) english feet.

The magnetic declination is shown as 7 1/2 degrees East and it should be noted that no correction was made. This is not explicitly stated here, but that was Soulard's practice. Thus, to obtain the bearings relative to astronomic north the figure would need to be rotated clockwise 7 1/2 degrees.

Next, we see small circles at the corners of the tract and distributed along the boundary lines. Each circle has a number beside it. There are no dimensions indicating the distance between intermediate circles along the line. So, what do the circles and numbers mean?

Let's look at the lower part of the drawing:

Here, we see that the circles represent "Bournes de Pierres, sur témoins de morseau [morceau] des marmites de fer," which translates to stone markers with pieces of iron pots for witness.

Here, we see the numbers defined:

1. piquêt = stake or post

2. chêne blanc = white oak

3. noyer = hickory

4. frêne = ash tree

 5. nogalon noyer, chêne Galleux, au lieu de noyer (I'm not sure on the translation for this) some kind of hickory, then some kind of oak in place of the hickory

It is noted that tous marqués DL = all the trees are marked DL

So, at this point I know what the circles mean and what the numbers stand for, but I'm not real sure what the circles and numbers together mean. Are the numbers indicating witness trees or are they part of the corner? Is it either a stone or a tree/post or both?

Okay, well, let's move on:

Next, we see that the tract is located 25 miles to the W. S. W. of the Village of New Bourbon and that tous les arbres de lignes sont plaqués = all the trees on the lines are marked.

Lastly, we see that the survey was performed on December 14, 1799 in virtue of the decree of the Lieutenant Governor Mr. Charles Dehault Delassus, dated November 29 of the same year. The certificate of survey was completed on March 5, 1800. Signed with the mark of Antoine Soulard.

So, there's the explanation for Soulard's survey. The information provided is brief and creates more questions than it provides answers. The drawing does also contain topographic features for reference, including a branch of the St. Francis River, creeks, hills and the location of the lead mine site (mine de plomb site), along with a statement that the land is generally good (terre generallement bonne).

After the United States took possession of the province of Louisiana, the process for confirmation of private land claims began. See my book, It was not Quick and It Was Not Simple: The Saga of Private Lands Claims in Missouri (go to book), for a more detailed description of that process. The Delassus claim was not confirmed until it was taken all the way to the United States Supreme Court (U. S. Reports, Vol. 34, pg 117). The Court confirmed the claim during the January term of 1835.

Under instructions from the Surveyor General of the United States for Illinois and Missouri, dated September 27, 1835, William Bartlett proceeded to make a boundary survey of the confirmed Delassus land claim, beginning on October 27, 1835 and ending on November 2, 1835 (Record of MO Private Surveys, Vol. 16, pgs 47-57).

He proceeded as follows (please, note that not all of the notes will be transcribed here, only those relevant to this discussion):

Compass adopted to the Variation of 7 1/2° East to conform to the original lines of Survey.

Examined for the North East Corner of Charles Dehault Delassus Survey and found a Hickory marked DL but no stone nor pieces of Iron Pot, therefore at the intersec[tion] of the North and East boundary lines of said Survey, set a post Corner from which a Hickory 12 inch Diam[eter] b[ear]s N43°W 55 Lks [36.3 feet] and a Black Oak 12 inch diam[eter] b[ear]s S78°W 108 Lks [71.3 feet]

Referring back to the Soulard survey, it notes a circle for a stone and a number "3," indicating a noyer or hickory marked DL. Marked hickory found, but no stone. Also noteworthy is that the intersection of boundary lines did not correspond with the location of the marked tree.

Thence N 82 1/2° W

[At a distance of] 0.71 [chains (46.9 feet) from the Northeast corner, found] Hickory 12 inch diam[eter] marked DL mentioned before

[At a distance of] 58.40 [chains (3854.4 feet) from the Northeast corner] Examined for witness as marked on plat A, but found none

This, then, would be the next circle on the Soulard survey, which is annotated with the number "3" for hickory. Nothing found, but what is the distance in arpents?

(58.40 chains)*(12 arpents/35 chains) = 20.0 arpents

Continuing: 

[At a distance of] 175.20 [chains (11563.2 feet) from the Northeast corner] Examined for witness as pr Plat A, but found none

It appears that the second line marker was skipped, so this would be the third circle on the Soulard survey, which is annotated with the number "5." Nothing found, but what is the distance in arpents for this one?

(175.20 chains)*(12 arpents/35 chains) = 60.1 arpents

So, it's looking like the line markers a being set every 20 arpents.

Continuing:

[At a distance of] 233.60 [chains (15417.6 feet) from the Northeast corner] Examined for witness as pr plat A, but found none

the last mile of this line appears not to have been blazed

This would be the fourth line mark on the Soulard survey, which is annotated with the number "1" for stake or post. Nothing found, but what is the distance in arpents to this one?

(233.60 chains)*(12 arpents/35 chains) = 80.1 arpents

Again, it appears the line marks are being set every 20 arpents.

In regard to the lines not being blazed for the last mile, that part of the line would appear to correspond with the creek bottom where the quality of the trees may not have been as good.

Continuing:

[At a distance of] 245.00 [chains (16170.0 feet) from the Northeast corner] Examined for Corner, but found none, therefore set a Corner post [for Northwest corner] from which a Gum 14 inch diam[eter] b[ear]s N58°W 15 Lks [9.9 feet] & a Gum 14 inch diam[eter] b[ear]s N60°E 69 Lks [45.5 feet]

William Bartlett, therefore, did not find a Soulard stone at the Northwest corner, so he set a post.

Continuing:

Thence S 7 1/2° W

[At a distance of] 29.61 [chains (1954.3 feet) from the Northwest corner] A Black Oak 12 inch diam[eter] here we find that we are on the Old line

[At a distance of] 58.40 [chains (3854.4 feet or 20 arpents) from the Northwest corner] Examine for witness as pr Plat A, but found none

So far, William Bartlett has been following the old blazed line, but has only found one tree marked as called for by Soulard. We may also note here that the old blazed line reappeared once Bartlett left the creek bottom.

Continuing:

[At a distance of] 117.80 [chains (7774.8 feet) from the Northwest corner, found] A white Oak 18 inch diam[eter] marked DL but found no stone nor pieces of Iron pot

Okay, so this would be the second line mark on the Soulard survey south of the Northwest corner, which is annotated with the number "2," which indicates a white oak. White Oak marked DL found!, but no stone. What is the distance in arpents?

(117.80 chains)*(12 arpents/35 chains) = 40.4 arpents

Continuing:

[At a distance of] 175.20 [chains (11563.2 feet or 60.1 arpents) from the Northwest corner] Examined for witness as pr plat A, but found none

This would be the third line marker on the Soulard survey south from the Northwest corner, which is annotated with the number "5." Nothing found.

Continuing:

[At a distance of] 233.60 [chains (15417.6 feet or 80.1 arpents) from the Northwest corner] examined for witness as per plat A, but found none

[At a distance of] 244.96 [chains (16167.4 feet or 84 arpents) from the Northwest corner, found] A white Oak 16 inch diam[eter] marked DL with a stone placed at the root, we raised the stone but found no pieces of Iron pot, this tree is at the intersec[tion] of the West and South boundary lines of Survey therefore I established it for the Corner from which a white Oak 14 inch dia[meter] b[ear]s S63°E 62 Lks [40.9 feet] and a white Oak 14 inch diam[eter] b[ear]s S43°W 93 Lks [61.4 feet]

Finally, he found a stone! The Soulard survey indicated a white oak (number 2) here and that's what Bartlett found marked as expected. The interesting thing to note here is that the stone was placed at the root of the tree indicated. So, it would appear that the stone and tree together form the corner.

Continuing:

Thence S 82 1/2° E

[At a distance of] 58.40 [chains (3854.4 feet or 20 arpents) from the Southwest corner] Examined for witness as per plat A, but found none

[At a distance of] 116.41 [chains (7683.1 feet or 39.9 arpents) from the Southwest corner, found] A white Oak 20 inch diam[eter] marked DL with stone placed at the root

Nothing found at the first line mark, but the second line mark from the Soulard survey found as expected. Here again the stone is at the root of the tree.

Continuing:

[At a distance of] 233.60 [chains (15417.6 feet or 80.1 arpents) from the Southwest corner] Examined for witness as pr Plat A, but found none

[At a distance of] 245.00 [chains (16170.0 feet or 84 arpents) from the Southwest corner] Examined for Corner and found the East boundary line

[At a distance of] 245.65 [chains (16212.9 feet) from the Southwest corner] Set a Corner post at the intersec[tion] of the South and East boundary lines from which a white Oak 10 inch diam[eter] b[ear]s S53°E 29 Lks [19.1 feet] & a white Oak 24 inch diam[eter] b[ear]s S19°W 25 Lks [16.5 feet]

Thence N 7 1/2° E

[At a distance of] 0.45 [chains (29.7 feet) from the Southeast corner, found] A white Oak 20 inch diam[eter] with stone placed at the root

Now this is a little curious. Bartlett found the stone and white oak as expected, but not at the intersection of the boundary lines. He marked the actual intersection with a post.

Continuing:

[At a distance of] 58.76 [chains (3878.2 feet or 20.15 arpents) from the Southeast corner, found] A Hickory 14 inch diam[eter] marked DL

This would be the first line mark on the Soulard survey, where a hickory was found as expected. Apparently, no stone, though.

Continuing:

[At a distance of] 117.15 [chains (7731.9 feet or 40.2 arpents) from the Southeast corner, found] A Hickory 14 inch Diam[eter] with stone and Pieces of Iron Pot.

 [At a distance of] 175.20 [chains (11563.2 feet or 60.1 arpents) from the Southeast corner] Examined for witness as pr plat A, but found none

 [At a distance of] 233.60 [chains (15417.6 feet or 80.1 arpents) from the Southeast corner] Examined for witness as pr plat A, but found none

[At a distance of] 245.48 [chains (16201.7 feet) from the Southeast corner] Closed at the beginning Corner. November 2, 1835

A curious thing to note here is that the length of this east line is 48 links long and the distance from the intersection of boundary lines at the southeast corner to the found stone and tree is 45 links. The distance from the stone and tree at 45 links to the found tree at 58.76 chains from the intersection of boundary lines is 58.31 chains (58.76 - 0.45) or 20.0 arpents. The distance from the stone and tree at 45 links to the stone and tree at 117.15 chains from the intersection of boundary lines is 116.7 chains (117.15 - 0.45) or 40.0 arpents. Remember also that the tree found at the northeast corner did not correspond with the intersection of boundary lines. Why the discrepancy? Were the marked boundary lines not those of Soulard? If the marked boundary lines are those of Soulard, did he mark the nearest available tree when a tree did not coincide with the corner? We can't ask Soulard now, so I guess we're left to speculate.

So, out of a total of twenty (20) markers set by Soulard, each of which was supposed to be a stone with a tree or post, William Bartlett only recovered seven (7) trees and only four (4) of those had stones. It should be noted that only one corner, the southwest corner, was actually found marked. Many of the markers set by Soulard were likely destroyed, obliterated or lost to natural deterioration before Bartlett got there. And, I suppose, there is always the possibility that Bartlett just missed some of markers.

I hope you found this interesting and that it helped in your understanding of how Soulard actually conducted his surveys.

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original composition by Steven E. Weible

updated 11-19-2023

It Was Not Quick and It Was Not Simple: The Saga of Private Land Claims in Missouri

 

I've written a book!

I've taken the articles about private land claims in Missouri that I have written over the past several years and have put them together in a .pdf "book."

This book, however, is not simply a collection of those previous articles. By the time I finished with the last article in March 2022, I had more information than I did when I started, so I rewrote some of the earlier articles, supplemented others and have included additional material.

This book has been written particularly for Missouri land surveyors as an educational resource, so that they can be fully informed about these oddities within the fabric of the orderly system of public land surveys, but other land professionals, genealogists and local history enthusiasts may also find the information useful.

The book was completed in March 2023 and is now available for download on the website of the Missouri Society of Professional Surveyors on the "Resources" page:

http://www.missourisurveyor.org/images/1185/document/itwasnotquick-ed1_671.pdf

You can also use the link on the right under "Published Articles."

 

Missouri's Katy Trail and the Court of Federal Claims

The Supreme Court of the United States had settled the matter. The National Trails System Act as amended in 1983 (Public Law 98-11, Section 208, 97 Stat 42), allowing the interim use of railroad corridors for recreational purposes, was a valid exercise of Congressional authority (Preseault v. ICC, U.S. Reports, Vol. 494, pg 1). The application of the legislation, however, might block or delay the recovery of property encumbered by railroad easements that would have been extinguished upon abandonment of the railroad corridor. This denial of recovery could constitute a taking of property rights without compensation. If a taking or denial of property rights did occur as a result of federal legislation, the United States would be liable for compensation under the Fifth Amendment to the United States Constitution.

Although the Supreme Court of the United States determined the constitutionality of the legislation, it did not determine whether or not its application created a liability for the United States to provide compensation. The Court recognized that not all rail-to-trail conversions would result in a taking of property rights, since the nature of the interest originally acquired by the railroad would be the determining factor. Railroad corridors were generally acquired in numerous parcels, so each parcel would have to be evaluated on its own merits and a claim for compensation pursued through the United States Court of Federal Claims.

The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department ... (28 USC 1491(a)(1)).

Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues (28 USC 2501).

A claim for compensation had to be filed in a timely manner after the claim first accrued, but it would take some court examination before it could be determined exactly when a claim first accrues. The case of Caldwell v. United States was the first to consider at what point in the railbanking process it is appropriate to initiate a claim for compensation.

When a railroad decides to abandon any part of its railroad line, it files an application with the Surface Transportation Board (STB), formerly the Interstate Commerce Commission. Standard abandonment proceedings are governed by the provisions of 49 USC 10903 (49 CFR 1152). If there has been no local traffic over the railroad line for at least two years and any overhead traffic on the line can be rerouted over other lines, the railroad may apply for an exemption from the standard abandonment proceedings under the provisions of 49 USC 10502 (49 CFR 1152.50(b)).

If a state, political subdivision or qualified private organization is interested in using the railroad corridor for interim trail use in accordance with the amended National Trails System Act, it must make a filing to that effect with the Surface Transportation Board. Under standard abandonment proceedings the filing is in the form of a “comment” or “request.” For an exemption proceeding a “petition” is required (49 CFR 1152.29).

If the railroad agrees to negotiate an interim trail use/railbanking agreement with the trail sponsor, then the STB will issue a “Certificate of Interim Trail Use or Abandonment” (CITU), for standard abandonment proceedings, or a “Notice of Interim Trail Use or Abandonment” (NITU), for exemption proceedings. If a railroad is unwilling to enter into an interim trail use agreement, it cannot be forced to do so (National Wildlife Federation v ICC, 850 F.2d 694 (1988)).

The issuance of a CITU or a NITU allows the railroad to discontinue service, cancel any applicable tariffs and salvage track and material consistent with interim trail use and railbanking. The railroad and trail sponsor then have a set period of time to negotiate an interim trail use agreement. If agreement cannot be reached in this set amount of time, an extension may be requested. Once an agreement is reached, the STB is notified. The CITU or NITU remains in effect indefinitely as long as the trail sponsor maintains its obligations under the National Trails System Act. If negotiations fail and no interim trail use agreement results, the railroad is permitted to fully abandon its line.

The Railway Company in the Caldwell case filed a notice of exemption to abandon its line on July 5, 1994. A trail sponsor came forward and a Notice of Interim Trail Use or Abandonment (NITU) was issued by the Interstate Commerce Commission (ICC) on August 31, 1994. Several extensions were granted before an agreement was reached and a notice to the ICC was filed on July 5, 1996. The actual transfer was executed on October 9, 1996 and filed for record on October 11, 1996. Plaintiffs filed their claim for compensation in the United States Court of Federal Claims on October 7, 2002 (57 Fed. Cl. 193 (2003)). That court determined the claim to be barred as untimely, not having been filed within six years of the date of the Trail Use Agreement. Upon appeal, the United States Court of Appeals, Federal Circuit, affirmed the decision of the Court of Claims, but for a different reason (391 F.3d 1226 (2004)). The Appeals Court made the following statements:

The taking, if any, when a railroad right-of-way is converted to interim trail use under the Trails Act occurs when state law reversionary property interests that would otherwise vest in the adjacent landowners are blocked from so vesting ... We conclude that this occurs when the railroad and trail operator communicate to the STB their intention to negotiate a trail use agreement and the agency issues an NITU that operates to preclude abandonment under Section 8(d).

The issuance of the NITU is the only government action in the railbanking process that operates to prevent abandonment of the corridor and to preclude the vesting of state law reversionary interests in the right-of-way.

Thus, the NITU operates as a single trigger to several possible outcomes. It may, as in this case, trigger a process that results in a permanent taking in the event that a trail use agreement is reached and abandonment of the right-of-way is effectively blocked ... Alternatively, negotiations may fail, and the NITU would then convert into a notice of abandonment. In these circumstances, a temporary taking may have occurred. It is not unusual that the precise nature of the takings claim, whether permanent or temporary, will not be clear at the time it accrues.

This decision was challenged by Barclay v. United States, 443 F.3d 1368 (2006), but it was reaffirmed by the United States Court of Appeals, Federal Circuit.

In the case of Ladd v. United States, 90 Fed. Cl. 221 (2009), a NITU had been issued, but negotiations failed and a trail use agreement was not reached. Plaintiffs filed a taking claim after the NITU was issued in accordance with the Caldwell decision, claiming they had been prevented from enjoying the unencumbered use of their property. The United States Court of Federal Claims dismissed the case, stating that no taking had occurred, since no interim use resulted. On appeal, the United States Court of Appeals, Federal Circuit, affirmed its former decisions in Caldwell and Barclay, stating that “where no trail use agreement is reached, the taking may be temporary ... However, physical takings are compensable, even when temporary” (630 F.3d 1015 (2010)). The decision of the Court of Claims was reversed and sent back for a determination of compensation.

The Katy Trail was realized when the Missouri-Kansas-Texas Railroad Company chose to abandon part of its corridor in Missouri in 1986. The Missouri Department of Natural Resources requested an interim use under the National Trails System Act as amended in 1983 and the Interstate Commerce Commission issued a Certificate of Interim Trail Use or Abandonment in April 1987. An interim trail use agreement was negotiated and the property was transferred later in 1987. Claims for compensation would follow as landowners adjoining the corridor were outraged at being denied the recovery of property occupied by the railroad.

Landowners opposing the Katy Trail took their argument to the United States District Court of Missouri, Eastern District, and were denied (Glosemeyer v. Missouri-Kansas-Texas R.R., 685 F. Supp. 1108 (E. D. Mo. 1988)). Appealing that decision, they took their argument to the United States Court of Appeals, Eighth Circuit, and again were denied (Glosemeyer v. Missouri-Kansas-Texas Railroad, 879 F.2d 316 (1989)). They then recognized that the Katy Trail was not going away and the only option left was a claim for compensation in the United States Court of Federal Claims. Interested landowners were advised that Mountain States Legal Foundation would file a class action suit on their behalf. A few days before the six-year time limit expired, however, Mountain States informed landowners that it would not be able to file the suit as a class action.

Mountain States Legal Foundation did represent Maurice and Delores Glosemeyer, but the remaining landowners were left to scramble for other options. On the day that the six-year limit would expire in 1993, these remaining landowners were able to file a motion for certification of their case as a class action in the United States Court of Federal Claims (Moore v. United States, 41 Fed. Cl. 394, Action No. 93-134L (1998)). They asserted that there were over two thousand (2000) potential class members owning property along the Katy Trail. Action on this case was delayed pending a decision by the United States Court of Appeals, Federal Circuit, in Preseault v. United States, 100 F.3d 1525 (1996), being an appeal of a decision of the United States Court of Federal Claims.

When the Court resumed its consideration of whether or not to certify the case as a class action, it identified the following eight criteria:

(1) whether the potential litigants constitute a large but manageable class;

(2) a common question of law is present;

(3) that [a] common issue predominates over any separate factual issues affecting individual members;

(4) the claims of the present plaintiffs must be typical of the claims of the class;

(5) the government must have acted on grounds generally applicable to the whole class;

(6) the claims of the class must be so small that it is doubtful they would be otherwise pursued;

(7) the current plaintiffs will adequately protect the interests of the class; and

(8) there is risk of inconsistent adjudications if individual actions were maintained separately, some in district court and some in this court.

More generally, class actions are appropriate only where they serve the interests of justice. [at page 397]

The Court decided that the case was well-suited for class action treatment. It, therefore, certified the action on July 2, 1998 as a class action on an “opt-in” basis. The class was to “consist of landowners whose property is burdened by the Katy Trail.” Potential class members were to be notified and those interested in joining were required to file a “Notice of Appearance.”

The Notice of Appearance shall have attached to it documentation that establishes (1) ownership of the parcel of land in question, (2) an affidavit that the parcel of land is presently burdened by the Katy Trail, and (3) proof of the property interest conveyed to the railroad. [footnote 4, page 401]

The government may contest the eligibility of any individual to join the class on the grounds that (1) the individual is not the fee owner of the burdened land, (2) the interest conveyed to the railroad contains no limitation and was in fee simple absolute, (3) the supporting documentation attached to the Notice of Appearance is inadequate, or (4) any other similar reason. [at page 401]

These preceding court actions had been specifically for those landowners adjoining the Katy Trail from Machens in Saint Charles County to Sedalia in Pettis County. There was, however, a separate abandonment proceeding in progress for the section of Missouri-Kansas-Texas Railroad corridor from Sedalia to Clinton in Henry County. The MKT had merged with Missouri Pacific Railroad Company in December 1989 and a Certificate of Interim Trail Use or Abandonment was issued in April 1991, so that Missouri Pacific could negotiate for an interim trail use agreement. An attempt was made to add landowners adjoining this second segment of corridor to the original class action suit, but the Court of Federal Claims denied this request, noting that it was both untimely and inappropriate (Moore v. United States, 42 Fed. Cl. 595 (1998)).

The Court of Federal Claims cases of Glosemeyer v. United States, Action No. 93-126L, Moore v. United States, Action No. 93-134L, and Grantwood Village v. United States, Action No. 98-176L, were consolidated for the purpose of resolving common issues of federal and Missouri law (45 Fed. Cl. 771 (2000)). The Court determined that interim trail use in accordance with the amended National Trails System Act did not constitute a railroad purpose under Missouri law where an easement had originally been acquired for railroad purposes only. Such an easement would have been extinguished whenever the use for railroad purposes ended. Therefore, delaying abandonment of the corridor and allowing interim use for recreation created a new easement for which compensation is required. The cases were then unconsolidated for further action.

For the class action suit of Moore v. United States, Action No. 93-134L, two hundred and ninety-eight (298) landowners opted into the class. The properties were grouped into categories and a representative parcel from each category was presented for examination by the Court with the intention that the decision on a representative parcel could be applied to the other parcels in the same category. A bench trial was conducted in Saint Louis, Missouri from November 12 through 22, 2002 on thirteen (13) representative parcels (54 Fed. Cl. 747 (2002)). The parties and the Court conducted a site visit of the representative parcels and then fact and expert witnesses were presented to show the competing views as to the value of the easement taken.

The Court described the procedure for determining the amount of compensation as follows:

It is settled that a landowner claiming a physical, partial taking of property is entitled to the difference in value before and after the taking. In this case, each landowner suffered a partial taking in two senses. First, the new easement is less than the fee estate. Second, the new easement potentially negatively impacts a larger piece of land than the right of way itself. This is known as severance damage and constitutes a pedigreed element of compensation, assuming it can be proved.

The calculation, therefore, involved “a determination of the fair market value of the entire affected parcel as if the easement did not exist and then another determination in light of the taking.”

Each parcel was appraised to determine a highest and best use and the acreage was determined. There was some disagreement about how the right-of-way parcels should be evaluated, but the Court decided “the right of way parcel should be diminished 100% in the “after” analysis because the landowners had no effective remaining use of the property ... Accordingly, the parties should value the land underlying the right of way in the “after” calculation at zero.” Where there was inconsistency in the values presented by each side, the court determined a compromise value, often by averaging the acreage calculations and taking the higher per unit land valuation. Compensation for the thirteen (13) representative parcels was fixed to facilitate settlement of the remaining claims.

Based on this representative determination, the parties agreed on the amount of compensation for a total of two hundred and eighty (280) claims out of the two hundred and ninety-eight (298). In a further proceeding of Moore v. United States, 58 Fed. Cl. 134 (2003), the Court of Federal Claims examined and dismissed seven (7) claims. The parties were able to resolve the amount of just compensation for eight (8) more claims. In a subsequent proceeding of Moore v. United States, 61 Fed. Cl. 73 (2004), compensation was established for the three (3) remaining claims.

After twelve years of litigation in the United States Court of Federal Claims (1993-2005), a final proceeding was held in January 2005 to approve a final settlement in the class action suit (Moore v. United States, 63 Fed. Cl. 781). Judgment against the United States was entered in the total amount of $5,065,820.62 (including $4,065,820.62 for principal and interest and $1 million for attorney fees, expert fees, and all other litigation expenses). The award was paid to the class action attorney for distribution to class members. Deductions from the award by the attorney of $356,745.33 for litigation expenses and $1.6 million for a contingency fee were approved by the Court. The remaining $3,109,075.29 was distributed to the two hundred ninety-one (291) class members for which compensation had been approved.

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original composition by Steven E. Weible

Missouri's Katy Trail Goes to Court

THE NATIONAL TRAILS SYSTEM ACT OF 1968

After World War II, America’s population was growing and disposable incomes were on the rise, leading to a greater demand for outdoor recreational opportunities. The idea of a national system of trails began to find its way into Federal legislative efforts as early as 1945. By the 1960s the demand for walking, hiking and bicycling trails had surpassed available opportunities (Trails for America).

President Lyndon B. Johnson expressed his support for a national system of trails to the U. S. House of Representatives in his February 8, 1965 message on “Natural Beauty.” He called for a balance of recreational trail opportunities in both urban and rural areas and noted that full use should be made of rights-of-way and other public paths. He directed the Secretary of the Interior to work with his colleagues in the Federal government as well as State and local leaders to recommend a cooperative program to encourage a national system of trails (Congressional Record, February 8, 1965, pg 2087). The Secretary of the Interior began working on this directive by requesting a study from which appropriate legislation could be drafted.

This nationwide trail study was conducted by the Bureau of Outdoor Recreation within the U.S. Department of the Interior and resulted in the 1966 publication entitled, “Trails for America” (GPO). The study examined existing and potential opportunities for national scenic trails, park and forest trails and metropolitan area trails. It also recognized that public utility rights-of-way for electric, telephone, telegraph and natural gas transmission lines and abandoned railroad corridors and even canal banks provided special opportunities for trail development. It further stated that “all Federal agencies having jurisdiction over the allocation and use of such rights-of-way should cooperate fully in the development of trails” and “State agencies having similar jurisdiction also should encourage and support development.”

The findings and recommendations of this study led to the introduction of legislation in 1966. Eventually the proposal found its final form in the National Trails System Act of 1968 (Public Law 90-543; 82 Stat 919; 16 U.S.C. 1241 et seq). This Act established a national system of recreation trails, scenic trails and connecting trails and created the standards and methods by which additional trails could be added to the system. National recreation trails were intended to provide a variety of outdoor recreation uses reasonably accessible to urban areas. National scenic trails were intended to be extended trails, providing enjoyment of nationally significant scenic, historic, natural or cultural outdoor areas. The Appalachian Trail and the Pacific Crest Trail were designated as the first national scenic trails. Connecting trails were intended to provide additional points of public access to or connections between national recreation trails or national scenic trails.

Section 8 of the Act directed the Secretary of the Interior, the Secretary of Agriculture and the Secretary of Housing and Urban Development to encourage State and local agencies, private interests and nonprofit organizations to establish trails in parks, forests and urban areas.

Section 9(b) of the Act acknowledged the potential for trails along roadways, utility rights-of-way and similar properties. Federal agencies having jurisdiction over use, abandonment or disposition of these were directed to cooperate with the Secretary of the Interior and the Secretary of Agriculture to ensure that suitable properties were made available for trail use.

THE RAILROAD REVITALIZATION AND REGULATORY REFORM ACT OF 1976

Railroads had developed rapidly in the 1800s to satisfy the need to move passengers and freight over long distances as the nation developed and expanded. As time passed, however, railroads began to lose market share to other forms of transportation. By the 1970s railroad activity had declined significantly and needed reform if it was to continue as a viable means of transportation. As part of this reform the Railroad Revitalization and Regulatory Reform Act of 1976 (Public Law 94-210; 90 Stat 31; 45 U.S.C. 801 et seq) was passed “to provide the means to rehabilitate and maintain the physical facilities, improve the operations and structure, and restore the financial stability of the railway system of the United States, and to promote the revitalization of such railway system, so that this mode of transportation will remain viable in the private sector of the economy and will be able to provide energy-efficient, ecologically compatible transportation services with greater efficiency, effectiveness, and economy.”

Railroads had been declining rapidly and there was concern that these abandoned rail corridors would be lost and no longer available should rail service be needed again in the future. Therefore, Section 809 of this Act called for a study to evaluate the potential for conversion of railroad rights-of-way to alternate uses where rail service had been discontinued or was likely to be discontinued. The concept of a rail bank was to be evaluated as a means to assure the availability of rights-of-way for future railroad use, particularly in areas where fossil fuel natural resources or agricultural production were located. Interim uses for these rights-of-way were also to be considered. State and local governmental entities were to be encouraged to develop recreational and conservation uses of abandoned railroad rights-of-way.

Section 809(c) amended the Interstate Commerce Act (49 U.S.C.) to require the Interstate Commerce Commission to make a further finding in cases of abandonment to determine suitability of the right-of-way for other public purposes, such as roads or highways, other forms of mass transportation, conservation, energy production or transmission, or recreation. If the property was determined to be suitable for other public purposes, disposal of the property was not to be permitted until it had first been offered for acquisition for public purposes.

AMENDMENT OF THE NATIONAL TRAILS SYSTEM ACT

Over time it became apparent that these past legislative efforts had not been successful in establishing a process by which inactive railroad corridors could be used for trail purposes. Once a railroad corridor had been abandoned, it may not be recoverable for trail use. An amendment, therefore, was needed to ensure that potential interim trail use was considered prior to abandonment of the right-of-way. In addition, some provision was needed to protect the railroad from liability during the period of interim use (House Report No. 28, 98th Congress, 1st session, 1983).

Consequently, Section 8 of the National Trails System Act (16 U.S.C. 1247) was amended in 1983 (Public Law 98-11, Section 208; 97 Stat 42). The new Section 8(d) reiterated as national policy the desire to preserve established railroad rights-of-way and to protect rail transportation corridors for future reactivation of rail service. State and local agencies and private organizations were encouraged to establish trails in existing, inactive corridors as an interim use. The interim use would not be treated as an abandonment of the right-of-way, since the right-of-way must remain available for a return to active rail service.

To relieve the railroad company of liability during the interim use, the interim use sponsor, whether a State, political subdivision or qualified private organization, had to agree to (1) assume full responsibility for the management of the right-of-way; (2) assume any legal liability; and (3) pay any and all taxes that may be levied or assessed against the right-of-way. The Interstate Commerce Commission would impose appropriate terms and conditions as a requirement of any transfer or conveyance for interim use and would not permit the right-of-way to be abandoned.

This section was further amended in 1995, when the Interstate Commerce Commission was abolished and replaced with the Surface Transportation Board (Public Law 104-88; 109 Stat 803; 16 U.S.C. 1247(d)).

THE KATY TRAIL IN MISSOURI

The Missouri-Kansas-Texas Railroad Company (MKT) operated a railroad line that traversed the State of Missouri. Right-of-way south of the Missouri River had been acquired in the 1860s and 1870s, while the section of right-of-way from the Missouri River crossing in Howard County to Machens in Saint Charles County had been acquired in the 1880s and 1890s. Much of this latter part of the route followed the bank of the Missouri River and was subject to frequent damage from flooding. In 1986 the company decided it was no longer feasible to continue operation in this area and filed an application in September with the Interstate Commerce Commission to abandon about 200 miles of right-of-way from Sedalia to Machens.

Trail proponents in Missouri recognized a golden opportunity to utilize the amended National Trails System Act to develop a long distance trail crossing the state. With financial backing from Edward D. “Ted” Jones Junior of Edward Jones financial services, the State of Missouri through the Department of Natural Resources submitted a request to the Interstate Commerce Commission (ICC) in October 1986 for a Certificate of Interim Trail Use to develop a recreational trail on the Missouri-Kansas-Texas Railroad right-of-way. The ICC approved the request and granted the Certificate of Interim Trail Use in April 1987 (ICC docket No. AB-102 (Sub-No. 13)). The interim trail use was subject to the conditions of the National Trails System Act as amended in 1983, preserving the right-of-way and forestalling abandonment.

Missouri-Kansas-Texas Railroad Company and the Missouri Department of Natural Resources then entered into an Interim Trail Use Agreement in June 1987. As salvage operations were completed in the succeeding months, conveyances of the right-of-way were executed for each county that was crossed. Construction of the trail followed shortly thereafter.

OPPOSITION AND COURT CHALLENGE

Trail enthusiasts were ecstatic, but landowners adjoining the MKT right-of-way were not so enthused. In fact, they were shocked and outraged. “You’re stealing my land! You’re stealing my land!,” they cried. Then the lawyers saw a golden opportunity and the litigation began.

These landowners argued that the right-of-way had been an easement acquired for railroad purposes only and for no other purpose. Once the railroad ceased to operate, they believed that by state law the right-of-way should revert to the present owners. In December 1986, one hundred and forty-four (144) individuals owning property along the right-of-way joined together in filing an action in state court to quiet title to the right-of-way. State court, however, was not the proper venue to challenge federal law, so the case was moved to the United States District Court of Missouri, Eastern District.

The first named plaintiffs for the case were Maurice and Dolores Glosemeyer. Defendants named in the case were the Missouri-Kansas-Texas Railroad Company (MKT), the Missouri Department of Natural Resources and its director, Frederick A. Brunner (Glosemeyer v. Missouri-Kansas-Texas R.R., 685 F. Supp. 1108 (E. D. Mo. 1988)). There were many more parties interested in the outcome of this case, however, so the Court allowed these additional parties to intervene as defendants, including the United States of America, the Conservation Federation of Missouri, the National Wildlife Federation, the Rails to Trails Conservancy, the Lewis and Clark Nature Trail Foundation, the Sierra Club, the Paralyzed Veterans of America, BICYCLE USA, the Lewis and Clark Heritage Foundation, the American Hiking Society, the Katy Missouri River Trail Association and the American Rivers Conservation Council. The Court also allowed the American Farm Bureau Federation and the Missouri Farm Bureau Federation to file briefs in support of the plaintiffs as “friends of the court.”

The plaintiffs challenged 16 U.S.C. Section 1247(d), the Interstate Commerce Commission’s regulations applying the provisions of that section and the ICC’s order applying the section and its regulations to the MKT right-of-way. They claimed that Section 1247(d) constituted (1) an invalid exercise of the commerce clause power under Article I, Section 8 of the United States Constitution; (2) an impermissible impairment of the obligation of contracts under Article I, Section 10 of the United States Constitution; (3) a violation of due process under the fifth and fourteenth amendments of the United States Constitution; (4) a taking of property without just compensation under the fifth amendment of the United States Constitution; and (5) a violation of various Missouri constitutional and statutory provisions. The plaintiffs, therefore, wanted the Court to declare Section 1247(d) and the ICC’s regulations and order unconstitutional. Then they wanted the Court to quiet title in each plaintiff for his respective interests in the MKT right-of-way. The Interest Groups that had been allowed to intervene as defendants filed a counterclaim, requesting that the Court declare Section 1247(d) and the ICC’s regulations and order constitutional.

In its decision, dated May 10, 1988, the District Court determined that it had jurisdiction to consider plaintiffs’ challenge to Section 1247(d), but that any challenge to the ICC’s regulations and order were the exclusive jurisdiction of the federal circuit court of appeals.

The District Court determined that plaintiffs’ assertion that Congress exceeded its power under the commerce clause by enacting Section 1247(d) was without merit.

The District Court further determined that plaintiffs’ claim of an impermissible impairment of the obligation of contracts under Article I, Section 10 of the United States Constitution was also without merit, since the section cited pertained to state legislation and not federal legislation.

As to the plaintiffs’ claim of a due process violation under the fifth amendment of the United States Constitution, the District Court recognized that an analysis was appropriate, but that the plaintiffs failed to demonstrate that Congress had acted in an arbitrary and irrational way when it enacted Section 1247(d).

The plaintiffs’ claim that their reversionary rights to the property had been impaired by a temporary regulatory taking without just compensation was rejected by the Court, since a suit for compensation through the United States Court of Claims was available to them under the Tucker Act (28 U.S.C. Section 1491). The Court did not address the question of whether or not a taking had occurred.

The District Court further rejected plaintiffs’ argument that Section 1247(d) violated numerous state constitutional and statutory provisions, as well as, state common law, since the state laws cited were preempted by federal law.

In conclusion, the District Court rendered judgment in favor of the defendants and against the plaintiffs and further declared 16 U.S.C. Section 1247(d) constitutional.

Plaintiffs promptly appealed to the United States Court of Appeals, Eighth Circuit (Glosemeyer v. Missouri-Kansas-Texas Railroad, 879 F. 2d 316 (1989)). The Court of Appeals heard the arguments and considered the analyses of the District Court. In its decision, dated July 5, 1989, the Court of Appeals recognized the opinion of the District Court as being well-reasoned. It, therefore, affirmed the decision of the District Court. Like the District Court, the Court of Appeals did not address the question of whether or not a taking had occurred, since the pertinent question was whether or not compensation could be obtained. As the District Court had stated, a suit for compensation was available to the plaintiffs through the United States Court of Claims under the Tucker Act.

A similar case from Vermont also challenged the validity of the “rails-to-trails” provision of the amended National Trails System Act and took the argument to the United States Supreme Court (Preseault v. Interstate Commerce Commission, U.S. Reports, Volume 494, page 1, 1990). The Supreme Court decision for that case, dated February 21, 1990, stated that “the statute is a valid exercise of congressional power under the Commerce Clause” and that “even if the rails-to-trails statute gives rise to a taking, compensation is available to petitioners under the Tucker Act.” In its analysis, the Supreme Court referenced the decision of the District Court in Glosemeyer v. Missouri-Kansas-Texas R. R. Co., 685 F. Supp. 1108, 1120-1121 (ED Mo. 1988).

Having thus far failed to find satisfaction, Maurice and Dolores Glosemeyer enlisted the counsel of Mountain States Legal Foundation and took their claim to the United States Court of Federal Claims to argue for a taking without just compensation against the United States of America (Action No. 93-126L). The Court of Claims examined the primary question as to whether or not the preservation of rail corridors for future reactivation by allowing an interim use constituted a railroad purpose under Missouri law. In its opinion, filed January 14, 2000, the Court determined that it did not. The easements for railroad purposes would have been extinguished under Missouri law had they not been preempted by federal law. As a result, the Court decided that the imposition of an interim use constitutes the taking of a new easement for which compensation is required.

While the Glosemeyers eventually prevailed in their claim for compensation, it should not be presumed that all landowners adjoining railroad rights-of-way that have been converted to an interim use are eligible for compensation. These rights-of-way were acquired in many parcels, some as easements, some in fee simple and some by condemnation. Each document of conveyance must be examined on its own merits in its historical context to determine the nature of the property interest acquired by the railroad. This will then determine whether or not an adjoining landowner has any basis for a takings claim.

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original composition by Steven E. Weible