What does Bayfield County case mean for landowners?
An opinion column by Jon Erik Kingstad
The Daily Press
Last Updated: Monday, December 16th, 2002 10:37:34 AM

Bayfield County has recently scored another victory in its effort to establish snowmobile and ATV trails without just compensation. On October 30, the Seventh Circuit Court of Appeals in Chicago upheld a decision by the federal district court in Madison that the abandoned Chicago and Northwestern Transportation Company right-of-way was "right-of-way of the type described in the Act of March 8, 1922 (43 U.S.C. 912)" and therefore property of the United State as a result of a land grant to the State of Wisconsin in 1856 and 1864.

For the time being, this decision has established the validity of Bayfield County's claim to a 100-foot strip of land across the property of Douglas and Judith Mauler in the Town of Keystone. The question which this decision raises, however, is what is the impact of this decision to landowners abutting the other 65 miles of right-of-way which were a part of this abandoned right-of-way? What about landowners abutting other rights-of-way in Wisconsin?

The Seventh Circuit Court of Appeals decision is applicable not only to the 65 miles of right-of-way abandoned by the Chicago and Northwestern Transportation Company in 1978. It is also applicable to the hundreds, if not thousands, of miles of previously abandoned right-of-way in Wisconsin and other States.

Prior to the Seventh Circuit's decision, it was widely assumed that right-of-way abandonment in Wisconsin was governed by the Wisconsin Supreme Court decision of Pollnow v. Wisconsin Department of Natural Resources. That decision had held that upon abandonment, the right-of-way evaporated automatically and was merged into the title of the abutting landowner. The State, through the DNR or a county, could not use the right-of-way for a road or a trail without paying just compensation to the landowner.

The Mauler decision overthrows the rights of landowners established under Pollnow. Unless Mauler is reversed by the United States Supreme Court, landowners abutting abandoned right-of-way outside of National Forests and parks will have to buy abandoned right-of-way abutting their land from the United States. Where the right-of-way has been established under a grant in aid of railroad construction, such as the 1856 and 1864 Wisconsin land grants, title is vested in the United States, under the jurisdiction of its Department of the Interior, Bureau of Land Management pursuant to the National Trails Systems Improvement Act of 1988.

Under the National Trails Systems Improvement Act of 1988, "right-of-way of the type described in the Act of March 8, 1922 (43 U.S.C. 912)" is classified according to whether or not such right-of-way is located within, adjacent to or outside of a National Forest, park or other conservation unit. The Secretary of the Interior is then required to determine whether the retained right-of-way is "suitable for use as a recreational trail", which the Department of the Interior is authorized to release and quitclaim to the government entity or "suitable for sale" which it is authorized to quitclaim and release to adjoining landowners.

How much might a landowner have to pay for acquiring abandoned right-of-way abutting their land? Before being enjoined by the Bayfield County Circuit Court in 1982 for violating the Wisconsin False and Deceptive Advertising Act, Robert Holmgren and Bayfield Recreational Development, Inc. was seeking $15 per linear foot for a warranty deed and $10 per linear foot for a quitclaim deed on a 100 foot wide right-of-way. More recently, Holmgren was asking $2 per linear foot.

This price could go up, however, where the landowner is in competition against the county or the state. This occurred in the case of abandoned Milwaukee Road right-of-way along the lower St. Croix River in Minnesota in 1979. After the Milwaukee Road went into bankruptcy, the Minnesota DNR approached the trustee in bankruptcy about possibly acquiring the right-of-way south of Stillwater to Hastings. When the landowners along the former right-of-way heard about this plan, they organized a non-profit corporation and raised money to purchase the right-of-way from the trustee, who put the property up for auction. Although the DNR offered $475,000 for the 20 miles of right-of-way, the landowners prevailed with a bid of over $500,000. Property owners cited fear of crime and trespass as their reason for raising this amount of money.

Crime may not be the concern in northern Wisconsin as it was in Minnesota, landowners may nevertheless may be concerned about the impact a recreational snowmobile or ATV trail has upon their property value or upon the marketability of their title. The United States Supreme Court has described the "right to exclude the public" as being the most valuable in the bundle of property rights sticks. What is worth to you as a landowner to exclude the public? The Seventh Circuit Court of Appeals decision in Mauler may well determine just how valuable such a right this is.



Jon Erik Kingstad is an attorney practicing from Woodbury, Minnesota. He represented the Maulers in their case against Bayfield County.