Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the September 12, 2017 mailing of "Constructive Notice":

Preempting A Prescriptive Easement

Plaintiff had been in open, continuous, adverse, notorious and actual use of the disputed area to provide daily access from its site by its employees, customers, vendors, distributors, delivery trucks, and any other vehicles or individuals accessing the site. Plaintiff's use of the disputed area had been adverse to any right, title and interest of Defendant. Hundreds of vehicles per day used the disputed area and have done so for at least the past forty years. Defendant, who owned part of the disputed area, suddenly barricaded it and demanded Plaintiff stop crossing that part. The inability of vehicles to continue to use Defendant’s property is causing substantial damage to Plaintiff's business and operations.

Plaintiff sought a temporary restraining order prohibiting the blockade, alleging it had acquired a prescriptive easement. Seems like no-brainer, right? The Federal District Court hearing the application denied the TRO because “Plaintiff has not shown a strong likelihood of success on the merits.”

Defendant was CSX Transportation, Inc., and its property was used in connection with its rail operations. CSX was able to show that Plaintiff's claim for a prescriptive easement is preempted by the Interstate Commerce Commission Termination Act ("ICCTA"). Chefs’ Warehouse Midwest, LLC, v. CSX Transportation, Inc., Case No. 1:17-cv-00555 (U. S. D. C., S. D. Ohio, Western Division, Sept. 15, 2017).

The ICCTA grants the Surface Transportation Board exclusive jurisdiction over "transportation by rail carriers" and "the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities,” even if the tracks are located entirely in one State. The remedies provided in the ICCTA preempt state law remedies. "Transportation" is defined in the Act includes all of the facilities, equipment, property, and instruments related to the movement of property by rail, regardless of ownership.


The ICCTA explicitly preempts specific state law sanctioned activities, while other actions, such as acquisition of prescriptive easements, can be preempted if they have the effect of “unreasonably burdening or interfering with rail transportation.” The question of whether a state law claim would "unreasonably interfere" with railroad transportation requires a fact-specific, case-by-case determination Although there are cases where preemption is not warranted, in Chefs’ Warehouse, CSX was able to show tractor trailers using the access area routinely come within four feet of the railroad track and impermissibly "foul" (interfere with) the track and that a signal cable was damaged by a tractor trailer using the access area.