MAULER V. BAYFIELD COUNTY: WHAT DOES IT MEAN FOR THE LANDOWNER?

By Jon Erik Kingstad,
Attorney at Law
Woodbury, Minnesota

Bayfield County has recently scored another victory in its effort to
establish snowmobile and ATV trails without just compensation. On October
30, the Seventh Circuit Court of Appeals in Chicago upheld a decision by
the federal district court in Madison that the abandoned Chicago and
Northwestern Transportation Company right-of-way was "right-of-way of the
type described in the Act of March 8, 1922 (43 U.S.C. § 912)" and therefore
property of the United State as a result of a land grant to the State of
Wisconsin in 1856 and 1864. For the time being, this decision has
established the validity of Bayfield County's claim to a 100 foot strip of
land across the property of Douglas and Judith Mauler in Keystone Township.
The question which this decision raises, however, is what is the impact of
this decision to landowners abutting the other 65 miles of right-of-way
which were a part of this abandoned right-of-way? What about landowners
abutting other rights-of-way in Wisconsin?

The Seventh Circuit Court of Appeals decision is applicable not only to
the 65 miles of right-of-way abandoned by the Chicago and Northwestern
Transportation Company in 1978. It is also applicable to the hundreds, if
not thousands, of miles of previously abandoned right-of-way in Wisconsin
and other States. Prior to the Seventh Circuit's decision, it was widely
assumed that right-of-way abandonment in Wisconsin was governed by the
Wisconsin Supreme Court decision of Pollnow v. Wisconsin Department of
Natural Resources. That decision had held that upon abandonment, the
right-of-way evaporated automatically and was merged into the title of the
abutting landowner. The State, through the DNR or a county, could not use
the right-of-way for a road or a trail without paying just compensation to
the landowner.

The Mauler decision overthrows the rights of landowners established under
Pollnow. Unless Mauler is reversed by the United States Supreme Court,
landowners abutting abandoned right-of-way outside of National Forests and
parks will have to buy abandoned right-of-way abutting their land from the
United States. Where the right-of-way has been established under a grant
in aid of railroad construction, such as the 1856 and 1864 Wisconsin land
grants, title is vested in the the United States, under the jurisdiction
of its Department of the Interior, Bureau of Land Management pursuant to
the National Trails Systems Improvement Act of 1988. Under the National
Trails Systems Improvement Act of 1988, "right-of-way of the type described
in the Act of March 8, 1922 (43 U.S.C. § 912)" is classified according to
whether or not such right-of-way is located within, adjacent to or outside
of a National Forest, park or other conservation unit. The Secretary of the
Interior is then required to determine whether the retained right-of-way is
"suitable for use as a recreational trail", which the Department of the
Interior is authorized to release and quitclaim to the government entity or
"suitable for sale" which it is authorized to quitclaim and release to
adjoining landowners.

How much might a landowner ave to pay for acquiring abandoned right-of-way
abutting their land? Before being enjoined by the Bayfield County Circuit
Court in 1982 for violating the Wisconsin False and Deceptive Advertising
Act, Robert Holmgren and Bayfield Recreational Development, Inc. was
seeking $15.00 per linear foot for a warranty deed and $10.00 per linear
foot for a quitclaim deed on a 100 foot wide right-of-way. More recently,
Holmgren was asking $2.00 per linear foot.

This price could go up, however, where the landowner is in competition
against the County or the State. This occurred in the case of abandoned
Milwaukee Road right-of-way along the lower St. Croix River in Minnesota in
1979. After the Milwaukee Road went into bankruptcy, the Minnesota DNR
approached the trustee in bankruptcy about possibly acquiring the
right-of-way south of Stillwater to Hastings. When the landowners along the
former right-of-way heard about this plan, they organized a non-profit
corporation and raised money to purchase the right-of-way from the trustee,
who put the property up for auction. Although the DNR offered $475,000 for
the 20 miles of right-of-way, the landowners prevailed with a bid of over
$500,000. Property owners cited fear of crime and trespass as their reason
for raising this amount of money.

Crime may not be the concern in northern Wisconsin as it was in Minnesota,
landowners may nevertheless may be concerned about the impact a
recreational snowmobile or ATV trail has upon their property value or upon
the marketability of their title. The United States Supreme Court has
described the "right to exclude the public" as being the most valuable in
the bundle of property rights sticks. What is worth to you as a landowner
to exclude the public? The Seventh Circuit Court of Appeals decision in
Mauler may well determine just how valuable such a right this is.