Trail of Troubles

By Judy Mauler

Mr. Earl Orner's Letter to the Editor in the July 19, 2001 County Journal and Daily Press responding to an earlier July 12, 2001 article appearing in both papers is inconsistent with both the law and the facts.

Fact: Our question of ownership has not yet been determined by any Court. The "victory" Bayfield County presently claims, is only that the applicability of The Federal Railroad Abandonment Right of Way Act, 43 USC 912, to our property was not presented to the Circuit Court. The State Appeal Court ruled that they could not decide on any issues that had not first been raised in the Circuit Court. The State Supreme Court denied our petition for review, presumably for the same reason.

Fact: Our reason for going to Federal District Court is to determine the question of ownership. The applicability of 43 USC 912 to our property can be, and is now, presented to that court as a fresh issue.

Fact: Shortly after the Circuit Court's August 2000 decision, I received an email. The author was Earl Orner. It said, "Bayfield County won the appeal! The Maulers could appeal to the State Supreme Court, but we hope they won’t after two defeats. We need to expedite abandonment’s (sic) on the Hurley to Mellen Line, the Hayward to Bayfield Line and others!" This email was sent to many DNR agents, public officials and businesses.

Fact: Adverse Possession is a threat. Iron County Vs Kirby & Pufall , case # 00 CV 36. This is an adverse possession case against two landowners on the former Iron Horse Trail. Iron County filed a Quit Claim Deed on the property. Trial is set for December 2001.

Fact: We tried repeatedly to work with the Bayfield County Snowmobile Alliance from 1995 – 1997 to solve the problems caused by having this trail so close to our house. Our contact was Steve Cordes.

Fact: The Title Insurance Company, which erred in clearing title to our property, paid what they claimed was the maximum required in March of 1999. The Circuit Court decision came in September 1999. We accepted the payment amount at the advice of our then-Attorney.

Fact: We've had many title searches and an abstract done on our property since we purchased it in 1994. The one that matters is the first one. We would never have purchased this property had we thought we did not own the abandoned railroad right-of-way running through it.

Fact: Our driveway is more than 500 feet long. Having to clear two gates and stop at a stop sign for the sake of a snowmobile trail - just to get out of my own driveway - is neither acceptable nor accommodating. Considering the width those gates would have to be our home would resemble a prison compound.

Fact: We were never given the option of a barrier wall between the grade and our home. Though it may have somewhat abated the noise problem, it would still not have solved all the other problems we endure from having trail activity through our front yard.

Fact: The investigator whom Pat Thornton sent to my home to determine the trail user problems and how to eliminate them offered me this information:

1. There was absolutely nothing he could do to help with vehicles using my driveway to exit and access the railroad grade.

2. Concerning the danger to my pets in their own yard, I was told that the County had an ordinance about dogs "at large" and that I could be ticketed.

3. I was asked if I had the County’s permission to cross over the railroad grade in the act of using my own driveway.

And this is what they call accommodation?!

Fact: In December 1997 I received two letters from Pat Thornton with documents enclosed. One was a partial list of several land descriptions. The second was a deed from 1904 having nothing to do with the railroad grade itself, but a separate strip of land bordering it. Her letter stated that these documents proved that Bayfield County owned the railroad grade. Indeed, they did not.

Fact: The Bayfield County Snowmobile Alliance removed the barriers blocking the railroad grade. I did get home in time to make them remove the stop signs they had placed on my driveway, and return them to the railroad grade. The barriers were already gone.

Fact: In January of 1998 we contacted an attorney to help us settle the dispute. In May of 1998, Pat Thornton was notified that any further contact with us would have to be done through him. She, and the county were also notified that both the attorney and a local abstract company agreed that the property belonged to us. That summer the barriers went back up.

Fact: The barriers were always put up in spring and summer, we tried very hard not to interrupt snowmobile traffic while getting these issues worked out.

Fact: We do not live on County E.

Fact: We offered to remove the barriers for the 1998 season if Bayfield County would go to the Courts to determine ownership of the abandoned railroad grade.

Fact: Bayfield County filed suit in October 1998.

Fact: In February 1999, we received the news that plans were in motion to reroute the trail off the grade and away from our home, using our property.

Fact: Plans were made, we received a map of the reroute. Earl Orner came to our home to do a visual walk-through with my husband. When they finished, Mr. Orner informed him that we would have to deed the new trail to the county; my husband refused. Orner then demanded we sign a ten-year easement, which my husband declined to do for fear of creating adverse possession. It was the end of their conversation.

Fact: Initially we offered a one-year easement, as other landowners did. Due to the expense of the reroute we offered three years plus a one-year easement, giving them four years, then one-year easements.

Fact: Our intentions were never to close the railroad grade. Mr. Orner's insinuation that we would close the trail after the four-year easement expired is insulting and unfair. Why would we allow a reroute construction, requiring the bulldozing of over half a mile of our own property, only to turn around and shut it down later? The notion is absurd, but the comment reveals much about Mr. Orner's character.

Fact: Jon Erik Kingstad is our attorney. I assure you, we've paid every dime of our own legal fees to this date, and we have been billed for every hour of his time. Mr. Orner's statement suggesting that Kingstad has represented us for little or no cost is absolutely ridiculous. Perhaps in Mr. Orner's alternate universe, lawyers work for free.

Fact: Kingstad does not support any group or groups that oppose the Federal Railroad abandonment laws.

Fact: On July 2, 2001 the Department of the Interior filed a motion to disclaim all interest in our property, which makes us wonder about the validity of Bayfield County’s claim.

Fact: Private property rights are among the greatest, most treasured features of American life and heritage. We will never give up the fight to keep our land.

Judy Mauler