Land Surveyor

S.C. Johnson family prevails to stymie 9 miles of northern Wisconsin trail

Bruce Vielmetti

Several years ago, Bayfield County decided a snowmobile and ATV trail from Cable to Bayfield would be a great boon to the local economy. To boot, officials found some dusty 19th-century acts of Congress theybelieved gave them a free claim to miles of abandoned railroad for akey leg of the trail.

But the former line ran through vacation property, including a big chunk on Lake Owen near Cable, owned for decades by the S.C. Johnson familytrust.

Litigation ensued, and after an early defeat in Madison federal court, the Johnson trust and some neighbors prevailed Friday before the 7th U.S.Circuit Court of Appeals.

The court wrote what amounted to a history of the railroads and frontier Wisconsin before derailing the county's theory.

It concluded that the 9-mile corridor at issue had never reverted to the federal government, and was the railroad's to sell to Sam Johnson -free and clear - back in 1980.

If the county wanted to build a snowmobile trail, it would have to acquire the land by purchase, condemnation or gift.

"This has huge implications for property owners, Realtors and title companies," said Carl Sinderbrand, the Madison attorney whorepresented the Johnson family trust.

"What Bayfield County was arguing was that there were public rights in private property that were not recorded, and unless you know theseobscure railroad statutes and which one applies, they'll just comeand take it."

Checkered history

To encourage development and expansion into the frontier, the federal government gave away lots of land or right of way to railroadsbetween the 1860s and 1880s. When land was mapped into 1-milesquares, called sections, odd-numbered sections were given to statesto deed to railroads. Even-numbered sections were sold to privateinterests.

The railroads would sell unneeded parts of their odd sections and use the proceeds to extend their lines and purchase or condemn neededstretches through the even-numbered sections. Earlier federal actsgranting federal rights of way to railroads included provisions thatif the railroads did not build, or if they ever abandoned theirtracks, the property would revert to the federal government.

By 1922, however, many railroads were failing as new forms of transportation gained popularity. But the federal government didn'twant thousands of miles of abandoned rail rights of way, so Congressgave local governments a one-year right of first refusal to claim theland for highways - or even recreational trails. After that, the landwould belong to adjacent property owners.

Bayfield County relied on an 1852 law, which gave any railroad chartered within 15 years a federal claim to right of way, a claim that wouldhave survived until the 1922 statute and would have then passed tothe county.

But the appeals court detailed how the St. Croix and Lake Superior Railroad obtained a charter within the 15-year window, but neverbuilt. By the time the North Wisconsin Railroad got its charter in1871, it was too late to get the federal right of way.

In the 1880s, the Johnson family predecessors bought the land on Lake Owen, in an even-numbered section, directly from the federalgovernment.

When the railroad later came through, it did so on an easement it obtained by condemnation. If the railroad abandoned an easement, the landwould revert to the original owner, not the government.

Railroad abandoned in '79

The railroad from Cable to Bayfield was abandoned in 1979. At that time, neither the county nor the state tried to claim the right of way.

Instead, Sinderbrand explained, the U.S. Forest Service approached Sam Johnson about buying a 9-mile stretch to prevent potential condominiumdevelopment in the area. Johnson bought the land, donated severalmiles to the Forest Service, sold small parcels to other landownersnearby, and kept the portion that ran through Johnson familyproperty.

The old right of way passes through a portion of the Johnson trust land on the opposite side of Owen Lake from the family's living quarters.But it cuts right through the much smaller holdings of other propertyowners on the west shore who built vacation and permanent homes theresince the 1980s.

Bill Stuart is a Milwaukee attorney representing two other homeowners who would have been affected by the proposed trail.

"Neither of our clients is opposed to trails per se in that area, just not in their backyard," Stuart said.

Mary Motiff, Bayfield County director of tourism and recreation, said officials are very disappointed in the ruling but it won't affectother segments of the trail already in use that were not based onclaims derived from old federal rights.

"We are in the process of evaluating options concerning whether to seek further review," she said.

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