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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowA federal appeals court has affirmed a lower court decision that railroad company CSX Transportation cannot prevent the telecommunications firm Zayo Group from running fiber optics cables beneath its tracks.
CSX’s assertion of property rights did not fall within the scope of Indiana law pertaining to railroad easements, 7th Circuit Court of Appeals Judges Frank Easterbrook, Doris Pryor and Nancy Maldonado argued in an Aug. 7 opinion.
The judges also noted that the installation does not constitute “continuing trespass,” according to court documents.
The appeals court stated that public utilities use railroad corridors to run infrastructure in between locations. Zayo is a public utility that provides telecommunications services.
In November 2021, CSX sued Zayo alleging that it trespassed by installing underground fiber optic calves under a corridor in Greencastle without prior approval from CSX. It also alleged that Zayo damaged signal cables and underground wires during a previous unauthorized installation in Illinois.
In total, CSX brought 10 counts against Zayo, including allegations of criminal trespass under Indiana’s Crime Victims Relief Act.
The US District Court for the Southern District of Indiana court had dismissed the Illinois charges due to lack of personal jurisdiction.
The district court ruled that CSX lacked standing to assert criminal trespass and rent claims because CSX failed to show that its easement did not include exclusive use of the railroad corridor. The district court stated that even if CSX had exclusive use of the corridors, that entitlement does not necessarily include the air above or ground below.
Zayo installed fiber optic cables either above or below the railroad corridor service not on it.
The court stated Zayo’s installation did not disturb CSX’s regular business in any way. It partially dismissed CSX’s criminal and civil trespass as well as its rent claim.
In its appeal, CSX’s argument was threefold. First, its easement allows it to exclude third parties from installing fiber optic cables above or below its railroad corridor. Second, the same easement allows it to charge a licensing fee for said installations. Third, Zayo’s cable installations constitute “continuing trespass” that prevented its trespass, rent and licensing theft claims from accruing until Zayo removed the installation.
On argument one, the question is whether or not CSX could bar third parties from installing fiber optic cables above or below the railroad track that falls within the scope of how Indiana law defines a railroad easement.
According to Indiana case law, easements have an authority over the surface of railroad corridors only. Everything else, including the land above or below is left up to the landowner.
If something interferes with railroad operations, which can be summed up by the “transportation of goods” along the line, CSX could step in. However, CSX failed to prove that Zayo’s installation interfered with operations, according to court documents.
Given the 7th Circuit’s conclusion regarding argument one, the 7th Circuit affirms the same in argument two. If the easement doesn’t allow the exclusion of third parties, it does not allow CSX to collect rent from those third parties. The landowner has that right.
For the third argument, 7th Circuit affirmed that Zayo’s installations do not constitute “continuing” trespass under Indiana law.
CSX tried to advance criminal trespass and licensing theft claims from Zayo installations dating back to 2015 and 2019. The 7th Circuit affirmed such claims were outside the applicable statute of limitations.
The case is: CSX Transportation Inc. v. Zayo Group, LLC, 25-1670
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