Since 1998 I have been involved in litigation with Bayfield County. I bought property with an abandoned railroad grade running right through the middle of it. Prior to this, two attorneys, the register of deeds, my title insurance company and an abstract company all told me that this abandoned grade belonged to me. Upon abandonment in 1978, the grade had reverted back to the property.

The grade was being used as a snowmobile trail. My neighbors told me that it was by permissive use and was for snowmobiles only from December to March. No atv use was permitted. I hadn’t lived in Wisconsin for 25 years, and was so happy to be back home I thought it couldn’t be that bad to have this trail on my property. Even though the centerline was 60 feet from my house. In truth, I believed that if it were a problem, it could be rerouted - on our property, to get it away from our home.

The first two years it really was no problem, but there was little snow and the winters were mild. The next winter the nightmare began. Snowmobiles, day and night. Litter, noise, trespassing, walking out of my door to see that some trail users see it as a public restroom and the exhaust fumes on still days are so overpowering, it is unbearable. My pets are in danger. I have seen these people try to run them down as they cross my driveway. Trail users don’t always stop at the stop signs, and since I can’t see them coming (especially at high speeds), I have had several near misses with snowmobiles.

Working with the area Clubs got me nowhere, so after 2 years to get their attention we barricaded the grade. We did this in the spring, to get their attention. In November (1997) a letter from the Bayfield County Tourism director arrived, claiming that they held a quick claim deed to the railroad grade. Like thieves in the night the barricade was mysteriously removed that December.

The next spring the barricade went back up and in October the County filed suit against us for ownership of the grade. We believed that State law controlled this issue and that judgment would be in our favor. In good faith we removed the barrier. Plans were made for a reroute, which satisfied both parties, the suit was on hold. At this time Bayfield County introduced 43 USC 912.

Since my attorney did not argue why this statute did not apply to our property, the court awarded judgment to the County. We filed an appeal with a new attorney, were not allowed to argue facts not presented in Circuit Court, so we lost the appeal. We then filed to the State Supreme Court, but they refused to hear our case, probably for the same reason. So we filed a new suit in the Federal District Court.

Judge Barbara Crabb ruled for the County as well and an appeal to the Seventh Circuit Court of Appeals upheld her decision. We still believe that the 43 USC 912 does not apply to the railroad grade on our property. The Department of the Interior and the Bureau of Land Management have disclaimed any interest in the right of way. However Judge Crabb dismissed them from the lawsuit, so they did not have to answer our claim. The Department of the Interior has an opinion on our property, which I believe would support our opinion that the right of way on our property was in fact, not federally granted. We have been unsuccessful in obtaining this document because it is "privileged information". Even filing for it under the Freedom of Information Act and an appeal of their refusal have failed.

The United States Supreme Court turned down our petition for certiorari.

The State and several Counties in Wisconsin have come to the conclusion that these railroad grades are accessible and would expand trail systems. Using Judge Crabb’s decision as a powerful tool, all of these grades can be taken for trail use if something isn’t done to overturn her ruling. Several right of ways are being targeted now. The Bayfield County Tourism Committee has announced their intention to take the right of way involved in my case from Bayfield to the county line and is encouraging the counties to our south to take it all the way to Hudson, Wisconsin. These trails will be multi use, "Public Highways", as the text of 43 USC 912 describes. There is no compensation involved.

Judy Mauler