The Long Con

“Why can’t you go back on the sale of the property to seek redress?” 

That’s the first question I get when people hear about the North Carolina Railroad Company (NCRR) threatening me with a lawsuit over their expanded easement claim. The simple answer is that the sale was very straight forward with nothing amiss. Long after the sale, the NCRR is attempting to move the goalposts. To understand this one must go back approximately 160 years.

The North Carolina Railroad was first chartered in 1849 and began its construction efforts in July 1851. At the time, most of North Carolina was wildlands and swamps, with a few agriculture fields. Armed with the state charter, the newly formed public/private partnership began laying track. Landowners had two years to discover tracks on their land and negotiate a grant or purchase of the easement. Otherwise by charter the railroad assumed a 200’ easement (100’ either side of the track centerline).

“Can’t you just go to the county records and find the deed setting the 50’ easement?” One would think it was that easy but searching for an 1850’s handwritten deed is almost an industry. Record keeping wasn’t always stellar, and floods, fires, and a Civil War did not help. A complete search would be too costly for me, but simply a summer intern assignment for the NCRR’s attorneys.

“Why do you have to prove the NCRR wrong, why isn’t the burden of proof on them?” Well, there’s this little thing called a "presumption of conveyance," a provision in favor of the railroad to allow an efficient method of acquisition by the railroad companies. Since this method of acquisition occurs only in the absence of a contract between the landowner and the railroad, if a search of the records discloses no instruments by which to determine the ownership, then it is found in the railroad's favor.

“Yes, but your building has been there over 100 years, isn’t North Carolina's statutory period for adverse possession twenty years?” State law gives the NCRR the same powers as private railroads. One of those rights: Railroads can’t lose property or easement rights by adverse possession. Therefore, even if a structure has been there 100 years or more, if the railroad claims it is in the easement the structure is considered an encroachment.   

“What about previous surveys and maps showing a 100’ easement?” The NCRR asserts in their 2017 survey that a 1909 North Carolina Supreme Court case about taxation determined that the rail corridor north of Queen Street is and was 200 feet. All previous plats, maps, and surveys are all wrong. The 2017 survey, with the extensive underlying documentation prepared by NCRR counsel, is the only correct survey according to NCRR counsel.

“How is this discrepancy explained?”  According to the survey: “Unfortunately, the limitations set out by the NCRR in its quitclaim deed was apparently overlooked by the draftsman of several future plats covering this part of New Bern.” And somehow, the NCRR nor their attorneys caught or corrected this oversight for over 100 years.

“So, are they going to tear down your building?” While in the past the NCRR has threatened to do just that, there would have to be litigation (that I can’t afford) prior to the bulldozers. Suing me to enforce their easement claim would be precedent setting for other property owners between Dunn and Queen Streets. Therefore, the NCRR would have to sue us all jointly to enforce their claim. Most of these property owners are not even aware of the NCRR’s new easement claim. Left unsettled, they will be shocked when they go to sell their properties.

“If they are not enforcing the easement, or even contacting other property owner what do they want?” The NCRR offered to let me continue using my property if I agree to pay them $4000 per year (with an escalation clause), buy insurance indemnifying them, and sign a lopsided agreement.

“Wait, if you own the property, what gives the NCRR the right to charge for an easement?” With rail passenger and freight service dwindling over the years many rail corridors were being abandoned. Realizing that abandoned easements were quickly being converted to other uses, North Carolina passed the "Rail Corridor Preservation Act" in 1988. This allowed the North Carolina Department of Transportation to acquire inactive or abandoned rail lines for "future rail use and interim compatible use," such as Rails to Trails.

In 2000, the North Carolina Legislature gave the NCRR power to lease right of way "for the purpose of preserving and protecting its railroad corridor and franchise." Former NCRR President said that is what they are doing when they pressure adjacent property owners to pay a fee, buy insurance, and sign an agreement. “Most legislators probably had no idea what they had unleashed.”

Dissolution is the Solution