17.00.2

Fee Simple Or Easement (Railroad Right of Way)

The interest or estate acquired in land by a railroad corporation may be construed to be either "fee simple" or an "easement."

The estate or interest acquired by a railroad corporation and conveyed to it for a right of way is generally construed to be an easement, but a railroad may, unless prohibited by statute or its charter, acquire fee simple in the right of way in cases where:

  • The deed of conveyance is sufficient for that purpose.
  • The state statute permits a railroad corporation to acquire a fee simple in its right of way.
  • The charter does not contain any prohibition to such an acquisition.

Generally, the question as to whether a railroad corporation takes a fee or an easement depends on a combined analysis of the following:

  • The construction of the instrument.
  • The intention of the parties.
  • The charter of the railroad corporation.
  • The local statutory provisions.
  • Judicial dicta.

In many cases, courts draw a distinction between deeds conveying land to a railroad corporation for "right-of-way purposes" and deeds conveying land for "other railroad purposes." Based on this distinction, courts have shown the tendency to take the view that, irrespective of the language being used, deeds conveying land for right-of-way purposes convey nothing but an "easement", and that deeds conveying land for "other railroad purposes" may be held to have conveyed a "fee simple" if language appropriate to that result is employed therein.

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