Railroad Right-of-Way Easements, Utility Apportionments, and Shifting Technological Realities

This note explores the controversy that arises when railroads attempt to apportion their linear corridor interests in land to communications pro-viders. Landowners often dispute the apportionments and demand com-pensation for the burdens placed on their land by the new uses. Recog-nizing that a significant part of today’s debate centers around the nature of the interests held by railroads and their successors in interest, the au-thor looks to the past to explore the nature of the interests originally granted by landowners to the railroads. The author observes that a sig-nificant amount of variation exists in the interests originally granted to railroads. Courts differ in how they interpret these interests and gauge whether the new owners have overstepped their bounds. Specifically, the author divides the approaches taken by courts into three categories: the traditional view, the incidental use doctrine, and the shifting public use doctrine. After analyzing all three, the author concludes that the shifting public use doctrine is the soundest approach in light of both accepted property law principles and also the public interest in benefiting from new communications technology.

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