By EARL ORNER

I have been involved in all aspects of this problem and my telephone log books and files provide detailed records of this problem and I wish to elaborate on and correct some statements made in the July 12, 2001, issues of The Bayfield County Journal and Ashland Daily Press.

Bayfield County and the Bayfield County Snowmobile Alliance have tried very hard to accommodate the Mauler's desires while still keeping trail No. 63 open.

Many Bayfield County residents bought Quitclaim deeds from the C&NW RR. for parcels of this railroad right of way. The Alliance later obtained a Quitclaim deed from the railroad for all remaining unsold parcels of the railroad right of way between Sawyer County and Bayfield including several bridges and the right of way crossing the Mauler property. The Alliance deeded its parcels to Bayfield County on June 28, 1989 and the State of Wisconsin subsequently repaid us for the cost of the Quitclaim deed.

All these Quitclaim deeds were for whatever interest the railroad had in the right of way except the railroad retained mineral rights and rights to use and maintain any and all existing utilities such as gas, power, communication lines, wires, etc. The Maulers do not have one of these Quitclaim deeds.

State funded snowmobile trail No. 63 was then established using the County parcels and many easements, generously granted, by landowners on or near the right of way.

The Maulers thought they owned the right of way because their title insurance company disregarded the County's Quitclaim deed and their property abstract contains 10 deeds, prior to 1969, that say "less 1.05 acres for railroad". There is also a 1996 deed from Terrance and Nancy Zieman, for additional land to the north, that says "Less right of way of record" and two mortgage deeds in 1997 and 1999 say "excepting railroad right of way".

The Title Insurance Company paid Maulers the $5,000 maximum of their Title Insurance policy after the State Courts ruled in favor of the County.

The Maulers encountered trail user problems, erected a barrier across the trail in 1997 and called Pat Thornton, of Bayfield County, several times about these problems. Pat took these calls very seriously, she discussed each of them with me. She brought the problem before the County Tourism and Recreation Committee and they discussed the problem several times. I attended all of those meetings.

On December 2,1998, a county letter was sent to the Maulers enclosing a copy of the County's right of way deed. They were told someone else would have to be found to remove the barriers if they couldn't do the job. Our snowmobile system trail system opened December 1 and Alliance people attempted to remove the barriers, but were rebuffed by the Maulers, who subsequently opened the trail.

The Maulers' attorney sent Bayfield County a letter, on May 28,1998, saying that the County had no right to have a trail through their property. The Mauler's, in August 1998, again barricaded the trail on both sides of their driveway.

A County Investigator visited Judith Mauler in August 1998 to determine what the trail user problems were and how to eliminate them.

The county offered to stop ATVs by installing gates and signs, on the trail, at both ends of their property and across their driveway at County E and at their yard entrance, east of the trail. We also suggested a 10-mph snowmobile speed limit through all of their property and we suggested changing the snowmobile trail Stop signs, at their driveway, to Slow signs to discourage riders stopping near their house, We also offered to erect a barrier wall between the trail and their house.

The Maulers rejected all these proposals.

On October 26,1998 Bayfield County filed suit against the Maulers. The Maulers agreed to remove the barricades for the coming snowmobile season, pending the outcome of the lawsuit.

The Maulers had previously suggested rerouting the trail further from their house and onto the highway right of way. The County wanted to consider that option and in February 1999, I was shown where the Maulers wanted the reroute. There are difficult erosion control problems for Fish Creek as the reroute descended the side of the high railroad embankment between their driveway and an 80-foot high, 280-foot long, bridge over South Fish Creek. The DNR required an engineered plan for the reroute and the County's Soil Conservation Specialist and I developed an acceptable plan, but the detailed cost estimate was $8,523.

The Tourism and Recreation Committee preferred the reroute to litigation. The Maulers, provided we used the highway right of way where the trail would be near their driveway, approved the plan. The Bayfield County Highway Department would not give an easement, but gave me verbal approval to use about 150 feet of highway right of way. We expected to use $8,523 of snowmobile funding for this reroute.

A March 2,1999, letter from Mauler's attorney said they would only grant a 12-month easement, for this reroute. The County rejected this offer.

A March 11,1999, letter from their attorney then offered a 3-year easement followed by 1-year easements and the County must relinquish all claims to the right of way. This was declared their last offer and not negotiable. The County rejected this 3-year minimum offer.

A March 15,1999, County letter asked for a 10-year minimum easement. A March 16,1999, letter from their attorney rejected this County's 10-year easement proposal.

In the newspaper articles the Maulers say they feared an "Adverse Possession" claim from a 10-year easement.

I don't recall any subsequent Mauler offer of a 5-year easement, but there was no danger of an "adverse possession" claim.

I wonder if the Maulers would ever have renewed any easements, after looking at the history of these easement offers.

The Maulers' actions had forced the County to continue the lawsuit. The State Circuit Court ruled for the County in August 1999 and State Appeals and Supreme Court later upheld that decision.

This decision leaves control of the right of way with holders of Quitclaim right of way deeds until there is a decree of abandonment by a court of competent jurisdiction or an Act of Congress as defined by railroad Right of Way Abandonment laws. This is different than an ICC (now Surface transportation Board) "abandonment" which is legally permission to discontinue service and remove track etc. and does not fulfill the abandonment requirements of the Railroad Abandonment laws that apply to Land Grant Railroads.

The Maulers, subsequently, filed suit against Bayfield County, the Railroad, the Bureau of Land Management and the Title Insurance Company in Federal Court to upset these Quitclaim deeds and regain title to the right of way by arguing that the Right of Way Abandonment laws don't apply in Wisconsin.

I believe that Jon Erik Kinstad, has represented the Maulers in the State Appeals Court, State Supreme Court and Federal District Court at little or no cost to the Maulers because he, and possibly groups he supports, oppose the Federal railroad abandonment laws. Thomas Lindsey represented the Maulers in the first Circuit Court case.

Earl Orner

President

Bayfield County Snowmobile Alliance