The following is a copy of a court decision rendered by Judge William E Herford in the Circuit Court of Blount County, Alabama as the result of a a class action suit filed in protest of the "Rails to Trails" movement.

IN THE CIRCUIT COURT FOR BLOUNT COUNTY, ALABAMA

WILLIAM A. CHATHAM, et al,

Plaintiffs

versus Case No. CV97 208 OH

BLOUNT COUNTY, ALABAMA, et al,

Defendants

This case is an action by Plaintiffs Chatharn, Davenport, Nix, Gunter, Loftis, Cowden, Spitzer and Intervenor Plaintiff Ingram against Defendants Blount County and the City of Oneonta in which the Plaintiffs are seeking to quiet title to certain land which abutted a railroad corridor approximately 53 miles long by 100 feet wide situated in Jefferson, Blount and Etowah Counties. On Motion of the Defendants the case was certified as a class action with the named plaintiffs as representatives of the class. Wayrnan 6. Sherrer was appointed as guardian ad litem for the unrepresented members of the class. The Water Works and Sewer Board of the City of Birmingham, ("Birmingham Water Works Board"), First Presbyterian Church of Gadsden, and the Jefferson County Board of Education were allowed to intervene as plaintiffs.

Motions for Summary Judgment were filed by Plaintiffs, Defendants and The Birmingham Water Works Board. Argument was heard on said motions on January 6, 1999.

Cheney Railroad Company, Inc., purchased a railway corridor by quitclaim deed from CSX Railroad on June 12, 1989. The corridor consisted of mostly easements, although some parts of the corridor were owned in fee. The fee simple portions of the corridor are not contested. Plaintiffs are holders of adjacent lands subject to the railroad easements. All easements were granted and the railroad was built and in operation before any of the Plaintiffs acquired title. Cheney operated a railroad on this corridor from the time of its acquisition until the last train ran on August 23, 1996. Cheney paid the ad valorem taxes on said corridor through October 1,

1997. The rails and ties were removed and sold by Cheney, and on June 5, 1997, Cheney transferred the corridor to the City of Oneonta and Blount County by quitclaim deed which excluded the gravel ballast material and reserved unto Cheney a portion of the railbed known as the Graystone Branch. This conveyance was expressly made pursuant to Code of Alabarna 1975, §10-5-2.1.

On March 3, 1936, the Louisville & Nashville R.R. Company granted the City of Birmingham a right-of-way to a portion of the subject railway corridor for the construction and maintenance of a water pipeline. This agreement was never recorded. A 60-inch water line was installed in the late 1930's. In the 1950's, the water pipeline was transferred to the former Industrial Water Works Board for the City of Birmingham, and in 1994 it was transferred to The Birmingham Water Works Board. On September 2, 1998, the water pipeline was transferred back to the City of Birmingham. The water line has been maintained and in constant use since 1936, and transmits an average of 50,000,000 gallons of water per day.

The Plaintiffs have the burden of proving their contention that Cheney abandoned its railway prior to its conveyance to Blount County and the City of Oneonta, and thus triggered Plaintiffs' reversionary rights. The Court finds that the Plaintiffs have failed to meet their burden of proof. The payment of property taxes, the sale of the rails and cross ties, the giving of a deed to Blount County and the City of Oneonta, the reservation of the ballast material, the reservation of the Graystone Branch, and the express reference in the deed to §10-5-2.1 are acts on the part of Cheney which are all inconsistent with the intent to abandon said railway. The evidence does not demonstrate an abandonment of the easements by Cheney Railroad Company, Inc., which would trigger Plaintiffs' reversionary interest.

The Court finds and declares that the conveyance by Cheney Railroad Company to Blount County and the City of Oneonta pursuant to §10-5-2.1 validly transferred the grantor's interest and did not trigger the reversionary rights of the plaintiffs.

Code of Alabama 1975, §10-5-2.1, Act No. 85-937, provides:

Any railroad is hereby authorized to transfer all rights title and interest to any abandoned right-of-way or portion thereof for public road and bridge use to the state highway department or for any purpose to any county commission or any municipality in which said right-of-way or portion thereof is located.

In Alabama, railroads are considered public highways. Constitution of Alabama §242. The language of §10-5-2.] is clear and unequivocal. An easement for railroad purposes is not legally abandoned simply because there is no present intent to use the right-of-way for a railroad. The right- of-way may be transferred to the state highway department for road and bridge use or to any county commission or municipality for any public purpose consistent with the underlying purpose of the original easement, i.e., transportation. Blount County and the City of Oneonta have not designated an intended use' for the railway corridor, however, the linear shape of the easement property certainly indicates that any public use to which the property could reasonably be put would be consistent with and related to transportation.

Public policy as expressed in 43 U£ C. §913 and elsewhere favors the preservation of railroad corridors for future use as a railroad. Code of Alabama 1975, §10-5-2.1 is consistent with such public policy, and serves as an extension of the Federal statute. Code of Alabama 1975, §10-5-2.1 is constitutional. This Court believes that the subject railroad corridor is an asset which is of inestimable value to the citizens of Jefferson, Blount and Etowah counties. Its preservation is in the public interest.

The Plaintiffs acquired their title after the railroad was constructed and subject to the existing railway easements. No plaintiff has offered proof of the nature or amount of any damages, and no damages are awarded by the Court in this case.

The Court further finds that the Birmingham Water Works Board has a prescriptive easement for the use and maintenance of its existing 60-inch water line. The installation of a 60-inch water main in the late 1930's, and the regular maintenance of this line is an undertaking which could not have escaped the notice of the property owners adjacent to the railway corridor. There is no evidence that any property owner has taken any action to require the removal of the water line prior to the filing of this lawsuit on December 8, 1997.

Plaintiffs' Motion for Summary Judgment is overruled and denied.

The Joint Motion for Summary Judgment by the Defendants Blount County I The Blount County Commission and The City of Oneonta is granted. Defendants Blount County and the City of Oneonta own the interest in the subject railway corridor previously owned by the Cheney Railroad Company, Inc., and conveyed by Quitclaim Deed dated June 5, 1997, and filed for record in the Probate Office of Blount County, Alabama, in Deed Record Volume 396, page 655.

The Motion for Summary Judgment by the Birmingham Water Works Board is granted. The Court finds and declares that The Birmingham Water Works Board has a prescriptive easement for the use and maintenance of its existing 60-inch water line.

Court costs are taxed as previously paid by the parties, except that the court has determined that $4250.00 is a reasonable fee for the Court appointed Guardian Ad Litem, Wayman G. Sherrer, and said sum I ordered paid by the Defendants.

This the 7th day of February 1999.

(Signature)

William E. Hereford, Judge

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