I Fought the Railroad (and the Railroad Won)

One of several truisms I was taught in my course on land-use law in the United States was the following: "The railroad is kind of like God." It was only partially tongue-in-cheek.

Railroads were central to the foundation of countless American towns, particularly in the second half of the 19th-century. As we've written about before, they operated very differently from the ways we plan and build public transportation today. A railroad would receive a land grant and would pay for construction of the tracks by developing the land around a new station. It's not unlike the value-capture model still used in countries like Japan today. But in the U.S., these early railroads were also given ridiculously expansive legal authority, including, very often, exemption from eminent domain laws.

This fact bedevils, to this day, countless advocates who want to do something to improve access for their community but run into the brick wall of railroad land rights. A railroad that refuses to come to the table can stop a big project in its tracks—such as the extension of the popular Midtown Greenway bike path across the Mississippi River in Minneapolis. But it can also doom modest, small bets that could otherwise be spearheaded by residents to improve their own neighborhoods. 

A recent conversation among a number of Strong Towns members highlights the issue perfectly, as well as what your best options are for making headway. I'm going to keep the participants anonymous and remove identifying details, in part to avoid attracting the attention of the particular railroad to this particular location.

If you see value in these kinds of discussions, we have multiple platforms in which Strong Towns members can engage with each other for conversation, advice, and to forge connections. These include the Strong Towns Community site, as well as a Facebook group, and numerous Local Conversations groups in cities and towns across North America. 

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The informal desire path in Eddie’s neighborhood.

A Long-Shot (But No-Brainer) Desire Path

Eddie writes:

I've spotted a project in my neighborhood that has Strong Towns written all over it but I don't know how to begin.

Here's the situation: I live at the end of a cul-de-sac and to get to the neighborhood behind our house you have to illegally walk/bike 300 ft on an unofficial path that crosses some railroad tracks. I would estimate that 75-100 people use the path every day (the actual number is probably significantly higher, but I wanted to be conservative).

The path connects my neighborhood with many great community amenities, it has a wide variety of users (including kids going to/from a school, community center, and park; people out for a stroll or walking dogs; and cyclists going to/from a nearby trail). and it would be a tremendous boon to the whole area if the path was made more permanent and accessible for everyone. Again, the path is a mere 300ft from beginning to end but to go point to point the "correct" way on surface streets it's 1.5 MILES and involves crossing 4 busy roads and going through 2 sets of stoplights so you can imagine the absurdity of doing it that way.

If you're biking or pushing a stroller you can't take the path without carrying your bike or stroller over them. I would love some guidance on what might be done to get an at-grade crossing over the tracks, to make the path more permanent and to get a curb cut on the far side.

This path sounds like the perfect "small bet" that responds to an immediate, demonstrated neighborhood need: a place where residents already struggle to get where they want to go. But the initial responses to Eddie are, well, not encouraging. Here's a sampling:

• Railroads are difficult to deal with. My experience is that they will never allow an at-grade crossing

• Yeah, I don't see that happening especially on an active line.

• oh boy. Others may have more experience but tbh fat chance that [railroad] would ever play ball helping to put in an at-grade crossing. They are more likely to put up fencing I think...

• I have been doing this for a long time and cannot recall any situation where a new at grade RR crossing was granted. I would also be hesitant to bring too much attention to your quest, or the railroad will create barriers to your informal path.

What is someone in Eddie’s boat to do? Commenters chimed in with advice. It turns out if you want to fight the railroad, you have to be strategic. With no legal obligation to come to the table, their primary concern is often avoiding liability and minimizing the complexity of their operations, which means very few crossings of the tracks. And a railroad that gets wind that people on foot are using an informal crossing (or "desire path") is as likely as anything to just put up a fence, rather than cooperate in improving the path and making it safer.

Here are some options you may have in a situation like Eddie's: 

Get the city on your side. Hold discreet conversations with city staff about your idea. They will let you know what resources or options might be available. 

Find out what the law says. Susan writes,

How long has the path been in use? The public may already have a prescriptive easement. Ask a lawyer and keep it quiet until you're ready with a strategy. If there is a public easement for walking as well as drainage because of longtime adverse use, then the RR can be stopped from putting up a fence, and city should be able to improve the easement.

[Editor's note: A prescriptive easement is a legal right to continue making use of another's property in a way that it has been conventionally, and openly, used for a long time without the owner's permission. A well-known path across private property that has existed for decades falls into the category where a prescriptive easement to continue using that path‚ and improve it, may be possible. It is analogous to the notion of squatters' rights.]

See if the city can negotiate a quid pro quo. Railroads do need things from local government, such as permits. In these circumstances, allowing something like a trail crossing might be a condition they're willing to trade. There may also be other, lightly or never-used crossings of the same railroad that could be traded for this popular one, thus not increasing the total number of crossings.

Try an underpass. In some cases, it might be possible to tunnel under tracks—a more expensive project than an at-grade crossing, but one that there might be grant funds available for. In others, the railroad might not have to allow an underpass, but might legally have to accept a pedestrian overpass—but that may present even higher cost and complexity. One user suggests, 

"Looking at it, that is one of the classic Midwest finished drainage ditches for major rain events that maybe has a trickle the rest of the time. It might be enough to put in some sort of cover with a drain (Dutch version: http://www.cyclelicio.us/2010/instant-concrete-bike-path/) that could connect to that greenbelt path." 

Convince the city to play hardball. Another user writes,

We had a project in [my town] that had a pedestrian shortcut to a commuter rail that had to cross over a freight spur used once a week by trains going 5mph max due to poor track condition. The RR refused no way no how. The city ended up building the path and filling in with a rubber panel to make the tracks accessible. The RR was pissed but didn't want to bother with legal costs or costs to remove it.

No matter what, it seems likely you have a tough road ahead of you if you decide to take on a railroad crossing to improve your ability to navigate your neighborhood. Good luck.

(Cover photo by Daniel Herriges)

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