Should Private Property Be Taken for Public Use Without Just Compensation?

By National Center for Public Pol... | July 7, 2008 | 8:21 PM EDT

(Editor's Note: The following is the 66th of 100 stories regarding government regulation from the book Shattered Dreams, written by the National Center for Public Policy Research. will publish an additional story each day.)

When the Missouri, Kansas and Texas (MKT) Railroad decided to abandon a rail line that passed through Jayne and Maurice Glosemeyer's 240-acre family farm near Marthasville, Mo., the Glosemeyers expected to recover the 12 acres of land that had been used by the railroad.

In 1889, Maurice Glosemeyer's great uncle signed an agreement that allowed the railroad to use this land, but only for railroad purposes. Missouri state law says that once a right to use someone's property for a specific purpose is abandoned, the landowner regains the right to use his property. Therefore, the Glosemeyers claim, the land used for the abandoned rail line should revert back to the family.

After the Interstate Commerce Commission authorized MKT's abandonment of its rail line, however, the MKT sold its land interests to the Missouri Department of Natural Resources for the creation of a recreational bike trail. This action was authorized by the federal Rails-to-Trails Act of 1983. Soon after, the Katy Trail, which passed through the Glosemeyers' property on the site of the old rail line, was established. When hikers travel along the 100-foot-wide trail, they pose a risk to themselves and the Glosemeyers' animals if they play with or bother the animals

Jayne Glosemeyer recalls one incident in which a little girl chased a piglet while her mother looked on approvingly. "The sow could have attacked her... and we could easily have been sued," noted Mrs. Glosemeyer. Furthermore, the Glosemeyers felt insecure about leaving their farm, even for a weekend, because of the people using a trail traversing their property.

In March 1993, the Glosemeyers filed suit for just compensation for the taking of their property in the U.S. Court of Federal Claims. The case was put on hold until a similar case, Presault v. State of Vermont, could be resolved in federal court. After Presault was decided (see the following story for details of that case), the Glosemeyers' case was allowed to proceed. In January 2000, Judge Eric Bruggink denied the government's claim that the trail serves a railroad purpose. MKT had shown no evidence that it would ever restore the land for later use as a rail line but did show that it had completely abandoned its use of the Glosemeyers' property.

Finally, Judge Bruggink declared that a "taking" had occurred because state law had created expectations that the Glosemeyers would recover their property without any restrictions. The judge found that if the government wants to pursue a worthy cause, such as the creation of a public trail, it has to pay just compensation for any "takings" that might occur in the process. According to Jayne Glosemeyer, the family is currently negotiating with the government for attorney's fees and compensation for the taking of its land. If they cannot reach an agreed amount, the Glosemeyers could return to the U.S. Court of Federal Claims to ask a judge to determine the compensation.

Sources: Mountain States Legal Foundation, U.S. Court of Federal Claims

Copyright 2003, National Center for Public Policy Research