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Justices rule on railbanking certified question

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The Indiana Supreme Court has issued an answer to a certified question about how state law plays into a federal railroad right-of-way case that involves property owners who want their land rights back for easements that once belonged to a railroad company.  

In Henry L. Howard, et al. v. United States, No. 94S00-1106-CQ-333, a majority determined that federal laws on railbanking and interim trail use are not land uses within the scope of the easements dictated by Indiana law, and that railbanking with interim trail use does not constitute a permissible shifting public use.

The case arises from a certified question posed by the U.S. Court of Federal Claims in Washington, D.C. Focused on property owners’ rights in Cass and Pulaski counties, this federal case involves 128 plaintiffs who are challenging the U.S. government’s authority to use their land that had once been owned by railroads in the late 1800s and early 1900s. The residents live in counties adjacent to the 21-mile railroad line that hasn’t been active since 2002. The residents argue the land rights of a nearby easement returned to them in 2003, but the federal government disagreed and tried to use a legal maneuver known as railbanking to keep land rights of that easement. The government argues that under Indiana law, the railroad rights-of-way hadn’t been abandoned and there was no unjust taking of land as the property owners contend.

Pulaski County resident Henry Howard filed a class-action lawsuit in September 2009, alleging that the federal government violated the Fifth Amendment provision prohibiting the taking of one’s property for public use without just compensation. The Department of Justice in December 2010 asked the federal judge to certify a question to the Indiana Supreme Court.

In a ruling written by Justice Brent Dickson, the Indiana court held that a public trail is not within the scope of easements acquired for the purpose of operating a line of railways. The original purpose was to transmit goods by train, and Dickson wrote that the easement can’t now be recast for the use of a public recreational trail without exceeding the scope of the easement and infringing on the landowners’ rights.

State precedent from 1968 makes clear that the focus of an easement remains on the purpose at the time of its acquisition, Dickson wrote. Indiana has never recognized the “shifting public use” doctrine and the justices declined to do so here.

Chief Justice Randall Shepard disagreed with his four colleagues, concluding that the contemplated railbanking and interim trail uses do fall within the scope of the easements presented.

 

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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