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.
Comment:
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.