Case Information
*1 Montgomery County, Maryland v. Ajay Bhatt , Nо. 36, September Term, 2015. Opinion by Harrell, J.
RAILROADS - ADVERSE POSSESSION
Adverse possession does not lie against lands devoted to public use and owned by State or local government, such as public highways. Because railroad lines, even if privately- owned, have been treated as equivalent to public highways, a railroad line reserved for public use is not subject to a claim of adverse possession, except where abandonment of the public use is clear.
RAILROADS – ABANDONMENT OF RIGHT-OF-WAY
Abandonment of a rail line requires both an intent to abandon and an act that demonstrates unequivocally that intent. The interim use of a former rail line’s right-of- way for a hiker/biker trail as an interim use, under the Federal National Trails System Act, does not demonstrate an intent to abandon the public use right-of-way, espeсially where a new ultimate use of the right-of-way as a commuter rail line is intended. *2 Circuit Court for Montgomery County
Civil Case No. 8929D
Argued: December 3, 2015
IN THE COURT OF APPEALS OF MARYLAND No. 36 SEPTEMBER TERM, 2015 MONTGOMERY COUNTY, MARYLAND v.
AJAY BHATT Battaglia,
Greene,
Adkins,
McDonald,
Watts,
Rodowsky, Lawrence F., (Retired, Specially Assigned), Harrell, Glenn T., Jr. (Retired, Specially Assigned), JJ.
Opinion by Harrell, J.
Filed: January 22, 2016 *3 Driving that train, high on cocaine,
Casey Jones you better watch your speed.
Trouble ahead, trouble behind,
And you know that notion just crossed my mind.
-The Grateful Dead, Casey Jones , on
Workingman’s Dead (Warner Bros. Records 1970).
Although the record of the present case does not reflect a comparable level of drama as captured by the refrain of “Casey Jones,” it hints at plenty of potential trouble, both ahead and behind, for a pair of public works projects (one in place and the other incipient) cherished by the government and some citizens of Montgomery County.
The Capital Crescent Trail is a well-known hiker/biker route that runs between Georgetown in the District of Columbia and Silver Spring, Maryland. Its path was used formerly as the Georgetown Branch of the Baltimore & Ohio (B&O) Railroad. After the trains stopped running in 1985, the property was transferred in 1988 to the government of Montgomery County, Maryland, via a quit-claim deed for a consideration of $10 million. It is planned that the Maryland portion of the former rail line (and current interim hiker/biker trail) will become the proposed Purple Line, a commuter light rail project between Bethesda and Silver Spring. This case raises, among other questions, whether a private landowner adjacent to the rail line may acquire by adverse possession a portion of the right-of-way through erection of a fence and installation of a shed that encroached for *4 more than twenty years upon the railroad right-of-way. Under the circumstances present here, we conclude that the private property оwner cannot prevail.
BACKGROUND
Respondent Ajay Bhatt owns 3313 Coquelin Terrace (a subdivided, single-family residential lot – “Lot 8” – improved by a dwelling) in Chevy Chase, Montgomery County, Maryland. He purchased this property in 2006 from his aunt, who owned the property since at least the 1970s. The lot abuts the Georgetown Branch of the B&O Railroad/Capital Crescent Trail. In 1890, the right-of-way that was the rail line (and is today the hiker/biker trail) was conveyed in a fee-simple deed from George Dunlop, grantor, to the Metropolitan Southern Railroad Company (“the Railroad”), grantee. The 1890 Deed conveyed to the Railroad a “strip, piece or parcel of land. . .Beginning at Station 59 plus 52, a point on the located centre line of the Metropolitan Southern Railroad, the same being in Rock Creek and on the line dividing the lands of Richard Ray and the said George Dunlop.” The Deed established a right-of-way 45 feet on either side of the center line of the tracks throughout the rail line. A freight-hauling operation was maintained thereafter on the rail line right-of-way until 1985.
The right-of-way was obtained by the County via quitclaim deed in 1988 from the Railroad pursuant to the federal Rails-to-Trails Act. The right-of-way is held and *5 maintained under a “Certificate of Interim Trail Use” pursuant to 49 CFR 1152.29. This “Certificate” allows the County to preserve the land as a hiker/biker trail until the County chooses whether and when to restore a form of rail service within the right-of-way. Thus, the right-of-way is listed currently by federal regulators in a “rail bank” under a presumption that the railway may be restored for rail use in the future. It is the County’s intent to develop within the right-of-way the planned “Purple Line” commuter rail. *6 On 18 October 2013, Montgomery County issued to Bhatt a civil citation asserting a violation of § 49-10(b) of the Montgomery County Code , which prohibits a property owner from erecting or placing “any structure, fence, post, rock, or other object in [a public] right-of-way.” The factual predicate of the claimed violation was the placement and maintenance by Bhatt’s predecessors-in-interest of Lot 8 of a fence and shed within the former rail line (and current hiker/biker trail) right-of-way, without a permit. The civil citation case was heard originally on 21 January 2014 in the District Court of Maryland, sitting in Montgomery County. The District Court found Bhatt guilty of a violation of *7 § 49-10(b) and ordered him to remove the fence and shed enсroaching upon the County’s right-of-way. The District Court required Bhatt to pay $5.00 in court costs, but suspended the $500 fine imposed previously by the County. Bhatt appealed timely to the Circuit Court for Montgomery County.
The appeal was heard de novo by the Circuit Court on 28 August 2014. The County presented evidence establishing that its right-of-way lies immediately adjacent to the rear property line of Lot 8. Ralph Wolfe, a right-of-way inspector, and Thomas Yoakum, a certified land surveyor, relied on aerial photographs, the 1890 Dunlop Deed, Bhatt’s deed and subdivision plat, and geographical information system (“GIS”) photographs from which to conclude that Bhatt’s fence and shed were located on the County’s right-of-way. The parties stipulated that:
[T]he fence goes beyond the lot line of the – what’s called Lot 8[the Bhatt lоt], in the plat for the subdivision, that was created in 1946. We could stipulate to that. We cannot stipulate that the property beyond that lot line is owned by the county, or that it was owned by the railroad. We’re not going to do that. But we can stipulate the fence goes beyond the lot line that was established in the plat.
With regard to the type of real property interest held by the County in the right-of- way, a Montgomery County real property attorney and expert accepted by the court in “real estate law and titles” was called by Bhatt to present his conclusions regarding the 1890 Deed and the County’s interest. The expert testified that the County received from the Railroad “a deed of bargain and sale so it was a transfer of the fee interest in the property and the Railroad held title to that property until 1988.” Because the County *8 owned the right-of-way in fee simple, he believed it impossible, as a matter of law, for the County to have acquired a mere easement interest in the right-of-way.
Bhatt’s defense to the charged violation of § 49-10(b) was that he owned the encroached-upon land by adverse possession established by his predecessors in interest, who erected the fence. From memories of his childhood visits to his aunt’s home on Lot 8, Bhatt testified that the fence had been present, as far back as he could remember. He recalled specifically seeing the fence in 1977 when he was eight years old. Additional witnesses presented by Bhatt testified that the fence had been present since the 1960s. No evidence was presented as to when the fence was installed exactly or why it was placed beyond the rear lot line of Lot 8. [5] The Circuit Court concluded that the fence had been present on Lot 8 since 1960.
Bhatt argued that, because the fence had been located beyond the property line of Lot 8 since at least 1963, the Railroad was obliged to take action to remove it prior to the maturation of the twenty year period for adverse possession. [6] Bhatt testified further that he applied for a permit to (and was granted by) the County in 2013 to repair and replace the fence. Without hiring a surveyor (and reportedly being himself unaware of the actual *9 property lines of the subdivided Lot 8), Bhatt based his application on the belief that the original fence was located on or within the boundaries of Lot 8. He presented additional evidence that the County had installed chain link fences on the hiker/biker trail and performed maintenance on the property outside his fence, but that the County did not perform any maintenance within his fence line.
On 31 December 2014, the Circuit Court vacated the District Court’s judgment and dismissed the violation citation issued by the County. Following post-trial motions, an amended memorandum opinion was filed by the Circuit Court on 2 March 2015. In that opinion, the Circuit Court concluded penultimately (on the strength largely of Bhatt’s real property attorney’s expert opinion testimony) that the County did not have a “right of way” easement over the former rail line, but rather had been conveyed a fee simple interest in 1988. The expert opined that the term “public right-of-way,” as used in the ordinance, referred solely to one held by easement. Because the County thus did not have a “right of way” over the property, Bhatt could not be considered in violation of § 49-10(b). As this reasoning continued, because the conveyance to the County did not result in the acquisition of a “right of way,” the Circuit Court concluded ultimately that Bhatt had a creditable claim for adverse possession. Moreover, the hearing judge did not feel obliged to conduct an abandonment analysis: “An abandonment analysis is unnecessary because the land was granted in fee simple, and cannot reasonably be defined as a right-of-way under federal, state, or local laws.” Thе Circuit Court made no final declaration or determination, however, as to who held title to the encroachment area *10 because it was not asked by the parties to decide that point conclusively in the context of the Code enforcement dispute that was at the heart of the litigation.
The County petitioned this Court for a writ of certiorari. On 17 June 2015, we granted the Petition, Montgomery County v. Ajay Bhatt , 443 Md. 234, 116 A.3d 474 (2015), to consider the following questions:
1) Did the lower court err in holding that the 1890 deed from George Dunlop to the Metropolitan Southern Railroad Company did not convey a right-of-way?
2) Did the County prove that the Respondent’s fence and shed encroached upon the right-of-way that was originally purchased by the Metropolitan Southern Railroad Company and later conveyed to the county for the Georgetown Branch/Capital Crescent Trail?
3) Is a railroad right-of-way susceptible to a private claim for adverse possession via an adjacent landowner’s encroachment when the right-of- way was actively used for a railway line and when there was no evidence of abandonment by the railroad?
4) Did the lower court err in holding that the Respondent acquired title to a former railroad right-of-way by adverse possession?
In order to resolve this case, we need answer only the last two questions. In so doing, the result is that we shall reverse the judgment of the Circuit Court for Montgomery County.
STANDARD OF REVIEW
In reviewing an appeal from a judgment entered following a bench trial, under
Maryland Rule 8-131(c), we “will review the case on both the law and thе evidence [and]
will not set aside the judgment of the trial court on the evidence unless clearly
erroneous.” Factual findings will be reviewed for clear error, but questions of law
“require our non-deferential review.”
Breeding v. Koste
,
DISCUSSION
I. Contentions The County contends that the Circuit Court erred in concluding that the quality of the interest the County holds in the former rail line strip of land was not susceptible to being characterized as a “right of way.” The County maintains that “there is no exclusive manner in which the title to a right of way must be held.” The County contends further that, because this Court has considered previously a railroad line to be analogous to a public highway for most purposes, the land in question is not subject to an adverse possession claim.
Bhatt responds that he proved sufficiently all of the required elements to sustain a colorable adverse possession claim to the encroached area within his fence. He argues that “the County has not cited a single Maryland decision holding that a privately-owned railway is immune to adverse possession.” Furthermore, Bhatt rejects the public highway-railroad line analogy because the land was in private, not public, use during its operation as a rail line (when his adverse possession interest ripened assertedly to fruition).
II. Analysis
a. Railroads as Public Highways
“A railroad is in many essential respects a public highway, and the rules of law
applicable to one are generally applicable to the other.”
Read v. Montgomery Cnty.
, 101
Md. App. 62, 68, 643 A.2d 476, 478 (1994) (internal citation omitted). Railroads are
owned frequently by private corporations, but this “has never been considered a matter of
any importance that the road was built by the agency of a private corporation [because]
the function performed is that of the State.”
Olcott v. Fond du Lac Cty.
,
Another well-cited exаmple of this dedication to public use is the exercise by
railroads of the power of eminent domain, “a power reserved only to the government and
those the government has annointed.”
Chevy Chase Land Co.
,
Very early the question arose whether a State’s right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly it could not, unless taking land for such a purpоse by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use. Yet it is a doctrine universally accepted that a State legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use? And the reason why the use has always been held a public one is that such a road is a highway, whether made by the government itself or by the agency of corporate bodies, or even by individuals when they obtain their power to construct it from legislative grant.
Olcott
,
b. May a public highway (or any portion of its right-of-way, no matter the type of real property interest by which it is held) be possessed adversely by an abutting private citizen?
A claim for adverse possession requires the establishment of a very specific set of well-known elements , but first the subject property must be subject to this type of claim before considering whether the elements may exist in a given case. The Circuit Court concluded that Bhatt touched all of the bases of a viable claim of adverse possession by *14 showing that his “possession of the property was actual, open, notorious and visible, exclusive, hostile, and continuous for the twenty-year statutory period.” We have held, however, that “nothing is more solidly established than the rule that title to property held by a municipal corporation in its governmental capacity, for a public use, cannot be acquired by adverse possession.” Seijack v. City of Baltimore, 270 Md. 640, 644, 313 A.2d 843, 846 (1974). Because a railroad is a quasi-public corporation under established Maryland law, it follows, to our thinking, that a railroad is counted among these municipal corporations and its real property is not subject to a claim of adverse possession under all but the most narrow circumstances.
The seminal case in Maryland on the issue of the ability to possess adversely the
property of а municipal corporation is
Ulman v. Charles St. Avenue Co.
, 83 Md. 130,
144, 34 A. 366, 369 (1896), which decided that “an abutting owner cannot, by
encroaching on a public road, acquire title adverse to the public rights therein.” “An
encroachment on a highway is settled conclusively in Maryland to be a public nuisance,
which can never grow by prescription into a private right.”
Sieling v. Uhl
,
In
Ulman
, a turnpike company (a State franchisee) acquired in 1854 rights to a strip of
land of a width of 66 feet within which it was authorized to build a road. “Within a year
or two thereafter, [the company] constructed a road of a width varying from 20 to 38 feet
only.”
Ulman
, 83 Md. at 140, 34 A. at 367. The company did not seek thereаfter to
*15
widen the road until over 40 years after the initial acquisition, at which time it sought to
expand the width of the active road to the entire 66 feet.
Ulman
,
c. Use of the right-of-way
Bhatt relies on the “notion that
municipal property not devoted to a public use can
be so acquired
” through adverse possession.
Seijack,
270 Md. at 644,
that the right and title to a mere easement in land acquired by a quasi-public corporation, either by purchase, condemnation or prescription, for a public purpose is dependent upon the continued use of the property for that purpose, and when such public use is abandoned the right to hold the land ceases, and the property reverts to its original owner or his successors in title.
East Washington Ry. Co. v. Brooke
,
In order to be considered “immune” from a claim for adverse possession, thе right-
of-way must remain in public use. There is “[n]o satisfactory single clear-cut rule
regarding what is a public use, which can decide all cases, [that] has yet been
formulated.”
Prince George’s Cnty. v. Collington Crossroads, Inc.,
275 Md. 171, 181,
Bhatt leans heavily on Read , 101 Md. App. at 67, 643 A.2d at 478, to conclude that the right-of-way here was susceptible to an adverse possession claim because the right-of-way was no longer in public use. The intermediate appellate court’s opinion in Read is not persuasive because it focuses on the distinctiоn “between property held by a railroad company as an easement and property held by a railroad company in fee simple,” id , a distinction we find not material in the context of the present case.
Historically, a right-of-way “in its strict meaning, is ‘the right of passage over
another man’s ground;’ and in its legal and generally accepted meaning, in reference to a
railway, it is a mere easement in the lands of others, obtained by lawful condemnation to
public use or by purchase.”
Chevy Chase Land Co. v. United States
,
The phrase “right of way” is more properly, however, a term of art, rather than a term
of science or law: “Maryland courts have often construed deeds of ‘rights-of-way’ to
railroads as easements or have used the terms ‘easement’ and ‘right-of-way’
synonymously.”
Chevy Chase Land Co.
,
It would be contrary to a cardinal tenet of legislative interpretation principles, i.e., avoidance of a nonsensical construction, to conclude that the Council intended to restrict improvements only within public rights-of-way held in easement, but not those held in fee simple. The contretemps over whether the interest in land conveyed to the Railroad (Continued…)
In
Read
, the Court of Special Appeals drew a distinction between land granted to a
railroad by Congress and land acquired privately in fee simple.
Read
, 101 Md. App. at
72,
whether there was a bona fide intent to preserve the right of way for actual railroad use, and the court could properly conclude that the acts and conduct of defendant were incompatible with the continued exercise of the easement, that the discontinuance оf the line was not merely temporary, and that the right of way was abandoned and the easement terminated.
Read
,
The 1890 Dunlop Deed shows that the purchase made by the Railroad was from a private landowner. There was no evidence adduced by Bhatt supporting a conclusion that (…continued)
and the County as being fee-simple, not an easement, is but a “furiously-contested moot
question,” to borrow a well-turned phrase coined by Judge Moylan of the Court of
Special Appeals (in
Holloway-Johnson v. Beall
,
the right-of-way was abandoned and was not being used by the public, even during the
period from 1985 when the freight service ended and 1988 when the property was
conveyed to the County and becаme a hiker/biker trail as an interim public use. Rather,
Read
supports the County’s argument because the Court of Special Appeals in
Read
concluded essentially that the railroad there was acting “as a quasi-public corporation,
functioning to promote the public welfare.”
Read
,
Relevant also to this particular inquiry, in 1983, Congress enacted the Rails-to-
Trails Act to provide a different avenue for railroads that had ceased to operate, but did
not intend to abandon its right-of-way as a public use.
Chevy Chase Land Co.
, 355 Md.
at 163,
To show abandonment, a claimant must show “an intention to abandon, and an overt
act, or an omission to act, by which such intention is carried into effect.”
Cooper v.
Sanford Land Co.
,
If it were to be found that the contemplated use were within the scope of the easement this could be evidence of a lack of intention to abandon. If the contemplated use were not within the scope of the easement, then unless it be found that some other permitted use is being made, it is possible that an intention to abandon might be found, although if the (…continued)
levied or assessed against such rights-of-way, then the Board shall impose such terms and conditions as a requirement of any transfer or conveyance for interim use in a manner consistent with this chapter, and shall not permit abandonment or discontinuance inconsistent or disruptive of such use.
16 U.S.C § 1247(d) (emphasis added).
contemplated use is found not to be within the scope of the easement this would not necessarily establish an intention to abandon.
Peck v. Baltimore Cnty.
,
[I]f the scope of the easement were limited to railroad purposes, then an intent to abandon railroad use could indicate an intent to abandon the easement. However, the converse is also true. If the easement is not limited in its scope to railroad purposes, then, in order for there to be an abandonment, the party alleging abandonment must show more than an intent to abandon railroad service.
Chevy Chase Land Co.
,
In
East Washington Railway Co.,
244 Md. 287, 223 A.2d 599 (1966), our
predeсessors concluded that the right-of-way was subject to adverse possession due to
abandonment. The conveyance from the private landowner to the railroad company
granted plainly “an easement for
railway purposes and use only
.”
East Washington Ry.
Co.
,
In
Chevy Chase Land Co.
, thе “grantee railroad [wa]s obligated under statutory and
common law to operate and use its assets for the furtherance of the general public welfare
[and we concluded that] the conversion of a railway used for freight to a footpath [wa]s
consistent and compatible with the prior railway use.”
Chevy Chase Land Co.
, 355 Md.
at 156,
The same is true here and is what makes the present case differ from East Washington . The right-of-way granted to the Railroad (and Montgomery County subsequently) by the 1890 Dunlop Deed was a general conveyance that placed no restriction on its use. Thus, the transition from railway to interim hiker/biker trail is a reasonable public use of the right-of-way and well within the County’s rights to establish. Under the Rails-to-Trails Act, this transition from rail travel to a footpath would not constitute abandonment. If an abandonment analysis were undertaken, Bhatt would *23 have to present specific evidence on this question, which he has failed to do before any court in this case.
The right-of-way in question was subject to the rails-to-trails program, as it was
located on the Georgetown Branch/Capital Crescent Trail and subject to a Certificate of
Interim Trail Use. As we concluded in
Chevy Chase Land Co.
, “when a railroad takes
actions pursuant to federal regulation that are wholly consistent with an intent to retain
the property interest, in this case in order to pursue an interim trail use agreement, those
actions alone cannot supply the decisive and unequivocal act evidencing an intent to
abandon.”
Chevy Chase Land Co.
,
(1) A rail carrier providing transportation subject to the jurisdiction of the Board under this part who intends to--
(A) abandon any part of its railroad lines; or
(B) discontinue the operation of all rail transportation over any part of its railroad lines,
must file an application relating thereto with the Board. An abandonment or discontinuance may be carried out only as authorized under this chapter.
49 U.S.C. § 10903(a). Because rail lines that are covered under a rails-to-trail s agreement are subject to a future restoration of rail use, the right-of-way is not subject to a regulatory abandonment.
indication that there was no intent to abandon the right-of-way as a public use.
Because no evidence was presented by Bhatt to show that the current use of the right-of-way by Mоntgomery County is unreasonable or that the Railroad or the County abandoned the right-of-way, no claim for adverse possession will lie. Accordingly, w e shall reverse the judgment of the Circuit Court. Bhatt’s fence and shed encroached upon the right-of-way in violation of Montgomery County Code § 49-10(b). The District Court got it right.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE DISTRICT COURT OF MARYLAND, SITTING IN MONTGOMERY COUNTY. COSTS IN THIS COURT AND THE CIRCUIT COURT TO BE PAID BY RESPONDENT.
Notes
[1] Montgomery Cnty Dep’t of Parks, Capital Crescent & Georgetown Branch Trails, http://www.montgomeryparks.org/PPSD/ParkTrails/trails_MAPS/Crescent.shtm [https://perma.cc/39HX-VGTM].
[2] See National Trails System Act, 16 U.S.C § 1241, et seq.
[3] This section provides: If any state, political subdivision, or qualified private organization is interested in acquiring or using a right-of-way of a rail line proposed to be abandoned for interim trail use and rail banking pursuant to 16 U.S.C. 1247(d), it must file a comment or otherwise include a request in its filing (in a regulated abandonment proceeding) or a petition (in an exemption proceeding) indicating that it would like to do so. The comment/request or petition must include: (1) A map depicting, and an accurate description of, the right-of- way, or portion thereof (including mileposts), proposed to be acquired or used; (2) A statement indicating the trail sponsor’s willingness to assume full responsibility for: (i) Managing the right-of-way; (ii) Any legal liability arising out of the transfer or use of the right-of-way (unless the user is immune from liability, in which case it need only indemnify the railroad against any potential liability); and (iii) The payment of any and all taxes that may be levied or assessed against the right-of-way; and (3) An acknowledgment that interim trail use is subject to the sponsor’s continuing to meet its responsibilities described in paragraph (a)(2) of this section, and subject to possible future reconstruction and reactivation of the right-of-way for rail service. 49 C.F.R. § 1152.29(a).
[4] The exact language of § 49-10 prohibits a person from doing the following within a public right-of-way: (a) do any reconstruction or maintenance work; or (b) erect or place any structure, fence, post, rock, or other object in the right-of-way, except: (1) mail boxes mounted on a support that will bend or break away on impact by a vehicle; (2) individual residential newspaper boxes mounted on a support that will bend or break away on impact by a vehicle; (3) street trees placed and maintained under Section 49-33(j); (4) ground cover placed and maintained under Section 49-33(k); (5) a temporary, removable obstruction or occupation of a right-of- way installed under a permit issued under Section 49-11; or (6) as оtherwise permitted by law. Any object placed in the public right-of-way under this subsection must not unreasonably impede use of a sidewalk or other right-of-way by pedestrians or persons in wheelchairs, or impede or endanger automobiles or other vehicles. Mont. Cnty. Code 2007, § 49-10. The exceptions provided in § 49-11 apply only after an individual has received a permit from the Director of Permitting Services, but still do not allow a private citizen to place a permanent structure on the public right-of-way. See Mont. Cnty. Code § 49-11.
[5] The date of installation of the shed, which is also within the fenced-in encroachment area, was not established separately. This gap in proof is not material because the fence encircled the shed and delineated the boundaries of the greater encroachment.
[6] Bhatt argued that the fence was erected initially in 1963, so the railroad company had until 1983 to take action to cause it to be removed before his predecessors-in- interest’s claim to the property ripened through adverse possession.
[7] To state a claim for adverse possession: “[T]he claimant must show possession
of the claimed property for the statutory period of [twenty] years.... Such possession must
be actual, open, notorious, exclusive, hostile, under claim of title or ownership, and
continuous or uninterrupted for the twenty-year period.”
Breeding v. Koste
,
[8]
See Ulman
,
[10] The specific language of this section provides in relevant part: [I]n furtherance of the national policy to preserve established railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy efficient transportation use, in the case of interim use of any established railroad rights-of-way pursuant to donation, transfer, lease, sale, or otherwise in a manner consistent with this chapter, if such interim use is subject to restoration or reconstruction for railroad purposes, such interim use shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes. If a State, political subdivision, or qualified private organization is prepared to assume full responsibility for management of such rights-of-way and for any legal liability arising out of such transfer or use, and for the payment of any and all taxes that may be (Continued…)
[11] Railroads are subject to federal regulations because railroads operate in interstate commerce. Abandonment of railroad lines and service are also controlled by federal law. 49 U.S.C. § 10903. Under this specific federal provision, a rail carrier must file an application for abandonment and thus non-use would not be sufficient: (Continued…)
[12] The County, in its Reply Brief filed with this Court, raised an argument not contained in its Petition for Writ of Certiorari nor raised or decided in the trial courts, to wit: the Circuit Court lacked jurisdiction to consider Bhatt’s adverse possession defense as it was preempted by federal law. See 49 U.S.C. § 10903. We do not recognize nor reach this jurisdictional argument because it was not raised and decided below, nor was it encompassed within our writ of certiorari. See Md. Rule 8-131(b)(1) (when reviewing a decision made by a circuit court acting in its appellate capacity, “the Court of Appeals ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross-petition and that has been preserved for review by the Court of Appeals”). In any event, a failure to consider this argument is of no consequence, inasmuch as the County prevails on the merits.