The old Chicago-Northwestern rail bed north of Cable is a pretty quiet place these days.
The era when endless loads of lumber and other products chugged through the northwoods on their way to market is long over. The rails and cross ties were removed after the line from Hayward to Bayfield was abandoned in 1978. Just about the only things traveling down much of the rail corridor these days are an occasional deer or snowshoe hare.
That's pretty much the way people who own property along the line like it. Peace and quiet are largely why they bought the land to begin with. Land they believe includes the abandoned railroad right of way.
However there are others who have a different vision for the corridor. They see it as an ideal route for a proposed recreational trail running Hudson to Bayfield. Used by snowmobilers in the winter, hikers and others in the summer, it would allow thousands a new and beautiful route through the north woods of Wisconsin.
In recent years, a legal case that went all the way to the U.S. Supreme Court.
Ownership in doubt
The Supreme Court has cast doubt on the ownership of the former rail corridor, and one property owner says years of litigation may be necessary to clear title to the land along the abandoned line.
Dr. Garfield Brown, a Twin Cities physican who once had a general surgery practice at Ashland's Memorial Medical Center, owns land crossed by the old CNW right-of-way.
He asserts the Bayfield County Board, the Department of Natural Resources and the Bayfield County Snowmobile Alliance have been working behind the scenes to establish a snowmobile trail that would run from Hudson to Bayfield. It is a claim that Bayfield County officials deny, but he's calling for public disclosure of the county's interest, if any, in the land along the corridor. He is also charging that public statements about a future snowmobile trail on the route has hurt property values and clouded landowner's title to the land.
"Snowmobiling and ATV riding are great sports, but if the DNR and the County want to provide areas for those sports to take place, they cannot be allowed to do it by confiscating land from private landowners," he said.
Meanwhile, the Bayfield County administrator, the DNR real estate director and the head of the Bayfield County Snowmobile Alliance all deny that there are concrete plans afoot to create such a trail.
"The county has the Crabb decision that was handed down in the Mauler case, which is currently being reviewed and discussed and interpreted," said Bayfield County Administrator Mark Abeles-Allison last Wednesday. "Does the county have a specific position as to what is going to happen with that? We do not, the county does not have a formal position at this time."
Wisconsin DNR Real Estate Director Dick Steffes, Friday said the DNR had no plans to secure the corridor.
"We don't have any state aquisition plan for that area, if there is something going on with it, I don't have any knowledge of it," he said.
The Mauler Case
The issue stems from the landmark Mauler case, which established the validity of Bayfield County's claim to a 100 foot wide strip of land across the Town of Keystone property of Douglas and Judith Mauler.
The County, through the Bayfield County Snowmobile Alliance, operates a snowmobile trail on the strip of land, part of the same abandoned Chicago-Northwestern corridor that runs through the Cable properties, although the trail is several miles north of the Cable properties. The strip was originally part of a land grant made to a predecesor of the Chicago-Northwestern, which itself was later acquired by the Union Pacific Railroad. The UP abandoned the line in 1978. The stretch of land running over the Mauler property was bought by Bayfield County in 1989 for the trail.
Several years later, the Maulers bought the land on either side of the trail and claimed under Wisconsin law, the corridor had become part of their land once the railroad stopped using it.
In 1998, attempts by the Maulers to close the route set off a legal fight between them and the county that continued until earlier this year.
In 2001, U.S. District Court Judge Barbara Crabb ruled the Maulers had no legal title to the right-of-way. Although the Maulers claimed the land had automatically become part of their land when the Union Pacific abandoned the line in 1978, Crabb said the railroad had properly conveyed the right of way for use as a public highway, and that Bayfield County had established such a highway in the form of the snowmobile trail.
In 2002, the U.S. Seventh Circuit Court of Appeals concluded that Crabb's decision was correct and found that the Maulers claims were invalid because the couple held no legal interest in the strip of land in the first place.
The Supreme Court's decision last May let the Seventh Circuit's decision stand.
A key in the Mauler decision was a landmark change in the legal view of the status of the corridor. Prior to Mauler, state and local officials had been guided by the Wisconsin Supreme Court Case of Pollnow vs. Wisconsin Department of Natural Resources, which held that upon abandonment, the right of way evaporated automatically and was merged in to the title of the abutting landowner. Given this, the state, through the counties and DNR, could not use the right-of-way for a road or trail without paying the landowner just compensation.
However Judge Crabb's ruling indicated that federal, not state case law was the controlling precident. The case cited by Crabb was Northern Pacific Railroad vs. Townsend.
This case was decided by the U.S. Supreme Court, which in 1903 said that the land grants originally given to the railroads contained the implication that when the railroad stopped using the land for railroad purposes, ownership of the land would go back to the United States. Crabb also cited a pair of federal statutes that said when ownership of land went back to the United States, the property could then be converted to "public highways" under certain circumstances.
Decision's impact uncertain
About the time of the Supreme Court decision not to hear the case, attorneys for both sides said the ruling had widespread implications for the landowners all along the 65-mile length of the old CNW corridor.
"It is also applicable to the hundreds, if not thousands of miles of previously abandoned right-of-way in Wisconsin and other states," said attorney Jon Erik Kingstad, who represented the Maulers in federal court.
"The decision makes it clear that these railroad rights-of-way are governed by federal law, not state law," said a report issued by the Stafford Rosenbaum Government Law Team, which represented Bayfield County in the Mauler case.
Nevertheless, the Mauler decision might not be as clear-cut as it appears on the surface, warns the Stafford Rosenbaum report.
"The extent to which the Mauler case applies to any particular right-of way depends of course on the particular facts. For that reason, if a landowner challenges the government's right to maintain a trail, a careful examination of the historical facts and the law will be necessary," the report continued.
A careful examination of the historical facts and the law is exactly what property owners along the Cable section of the old right-of-way say proves that their properties are not subject to the Mauler ruling. They also want Bayfield County to follow a policy that will clear their title and ensure their privacy and peace. However, recreational interests believe just as firmly that the Mauler case does apply to the entire right-of-way and cite the economic boon to the county that a new trail would bring to communities along the rail corridor.
Tomorrow: Private property or public corridor? The looming court battle over the CNW right-of-way.