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The bikes at the Virginia Station CaBi station turned out to be very useful yesterday when construction work closed the Orange line between there and Rosslyn. It helped a FABB member avoid taking the bus shuttle between stations.

I disagree with the idea that railbanking is in trouble. Railbanking was (hopefully) never intended as a means for depriving abutting landowners of their constitutional right to be paid for property taken, but rather an administrative way to preserve rail corridors.

The whole rationale for preserving a rail corridor is that its value to society is greater than the value to the property owner to whom the land would otherwise revert. So by paying those landowners a fair value, society still comes out way ahead.

And of course, in many cases, the owner to whom the land would otherwise revert is long gone from the scene, with ownership split among her descendants who are unaware of this fractional interest, so no one presents the claim anyway.

As the post to which you link points out, what is remarkable is not that the government has to pay compensation for taking land for a trail. What's remarkable is that the federal government keeps insisting that an easement to build a railroad gives the railroad an easement for a public trail, and that DOJ is not sanctioned for making that argument after it has lost so many times.

I found the article somewhat alarming. I had thought the state of the law to be almost the opposite, that the idea of "banking" the land for potential future rail use had been accepted as preventing the reversion of title. I agree with the writer that making the same losing legal argument again and again is foolhardy.


I think that a key distinction is between preventing the reversion for purposes of property law (and just compensation) and preventing an actual reversion and the resulting changes in land use.

Railbanking is clearly accepted as a means of preventing actual reversion to preserve the rail corridors. But it does not toll the reversion for purposes of defining the property rights of the owner of the underlying property. That is: If the grantor conveyed the land to the railroad "for so long as a railroad operates on the right of way" then when the railroad closes, the land reverts because the railroad is not operating.

If there is a railroad easement, the story is a bit different. The railbanking does indeed stop the land from reverting, because the railbanking shows no intention to abandon the corridor. But that easement never said the railroad could build a trail, any more than a utility easement allows for a trail. It's a different use, so one has to pay. But instead of having to condemn the easement through eminent domain, it is acquired through railbanking. So the federal government which created that railbanking program pays, instead of the local agency building the trail.

Thanks for the additional background. It is a bit jarring to pay what is really a windfall to the adjacent property owners.

DOJ still needs to change its playbook, or just stop trying.

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