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Wednesday, 01 December 2010 20:38

Railroad neighbor irked by crossing controversy

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When Terry Stephenson bought a piece of hillside property on Lower Alarka Road in Bryson City, he expected it to slowly develop into a homestead for himself and his 11-year-old daughter. What he didn’t expect was the headache that the undeveloped hillside has become since he became embroiled in an argument with Bryson City’s Great Smoky Mountains Railway over his right to cross their tracks.

The railroad has 10 acres of Stephenson’s property that encompasses their tracks and the accompanying 100-foot right-of-way granted to railroad tracks, originally intended to allow freight and passenger rail companies space in which to store extra equipment. Stephenson said he would be unconcerned with the tracks if they didn’t cross the single dirt road that is the only entrance to his property.

The crossing that once existed there was excavated and replaced by the railroad, who then offered Stephenson a private right of way agreement that reinstated his right to use the crossing. But Stephenson only got a few words into the 14-point agreement before realizing that he would be coming out bearing the brunt of the burdens if he signed.

“There’s nothing in there for me at all,” said Stephenson. “It might as well have been printed on toilet paper.”

His chief grief with the company is the $3,000-a-year crossing insurance that the agreement stipulates, something he maintains has not been required of anyone else who has been granted a crossing.

“There’s a lot of people who don’t have crossing insurance,” Stephenson said, “and they want me to maintain a $2 million policy and make them the beneficiary.”

The agreement would also stipulate that the crossing is non-transferrable, so when he property passes to his daughter or the next owner, they wouldn’t have the right to use the crossing without entering into a separate, new agreement with the railway.

Stephenson said he has no intention of signing the agreement, but he also knows that the cost of taking the railroad to court over the issue might be cost prohibitive.

“You’re fighting everybody fighting the railroad,” said Stephenson, “but it’s like paying a toll to get to my property, and every month I’ve got a payment to make, whether I can get to it or not.”

When asked for their take on the dispute, Great Smoky Mountains Railway General Manager Kim Albritton responded only that she was “not interested in discussing it with you.” Subsequent calls and e-mails to the railroad’s management were unreturned.

When Stephenson got nowhere in his negotiations alone, he tried bringing the issue before the Swain County Commissioners, who pledged that they would attempt to mediate the situation.

But, said County Manager Kevin King, the county was similarly stonewalled.

“We basically called the train and wanted to discuss that issue with them and they indicated that this is a legal dispute and at this point they would not sit down and talk to the board,” said King. “We asked for a meeting, they declined, and that’s all we can do.”

But even if he tries to fight the railroad, Stephenson will likely have a long and difficult road ahead of him, and there is a chance that the law might not be on his side.

“North Carolina case law generally grants railroads broad discretion to regulate the use of their rights of way by others,” wrote Raleigh attorney Jeffrey Bandini in an explanation of railroad real estate laws called Railroad Property. “This control is justified to ensure safe travel on the rights of way and to protect the physical integrity of the facilities built on the rights of way and the land upon which the facilities are located. Accordingly, whether a railroad company owns its right of way in fee simple or easement, third parties must obtain permission from the railroad company to enter the right of way for any purpose.”

Plainly speaking, that means that Stephenson will have a hard time countering the agreement, since the state has long given railroads a great deal of license in how to use their own rights of way.

Stephenson, however, isn’t averse to a crossing agreement, but feels that what the railway is putting forward is beyond unreasonable.

He said he’d be happy to pay his part for the upkeep of the crossing, but thinks that $3,000 a year is slightly exorbitant, given that his taxes are barely $800.

“I’m not trying to be hard,” Stephenson said, “I just need to get to my property. “

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