Relating to Real Estate

In Montgomery County, MD v. Bhatt, No. 36, Sept. Term 2015 (Md.Ct.App. Jan. 22, 2016), the Court of Appeals held that a person may not adversely possess against a railroad that has not abandoned its right-of-way, and as a result the person did not acquire title to the property on which he constructed improvements.

Bhatt owns a house and lot which back up to the Capital Crescent Bike Trail in Chevy Chase. That trail is built in a right-of-way which was the B & O Railroad Georgetown Branch line that operated as a freight railroad until 1985. The right-of-way was 90 feet wide. B & O was acquired by the Chessie System and became what is now the CSX Railroad.

CSX quitclaimed the right-of-way to Montgomery County (the “County”) in 1988 pursuant to the National Rails-to-Trails program. The County holds the right-of-way in a “rail bank” until it decides if it is going to restore some form of rail service in the right-of-way. It appears that the right-of-way is intended to form part of the future Purple Line of the DC Metro system.

In 2013, Bhatt was charged with violating a County ordinance which prohibits construction of any type in any County owned right-of-way. The construction being objected to was a fence and shed well within the right-of-way. Some proof showed they were erected as long ago as 1963. Bhatt claimed ownership of the fenced-in area by adverse possession. Bhatt was found guilty in district court but appealed to the Montgomery County Circuit Court. The circuit court found that the fence was erected in 1960 and that Bhatt had established all of the elements of adverse possession – “possession of the property was actual, open, notorious and visible, exclusive, hostile, and continuous for the twenty-year statutory period.” Therefore, the circuit court vacated Bhatt’s conviction. It found that CSX had conveyed a fee simple title to the County, not a right-of-way, so Bhatt could not be guilty of construction in a public right-of-way.

The County asked the Court of Appeals, our highest court, to review the case, and the Court agreed to do so. It heard oral argument on December 3, 2015, and reversed the Circuit Court. It issued its opinion on January 22, 2016 – lightning speed for our Court of Appeals.

The Court of Appeals found no reason to distinguish between whether a right-of-way was a fee simple interest or an easement. Moreover, the Court found that a railroad line is analogous to a public highway, and that encroachment on a highway can never grow into a private right by prescriptive use. The Court determined that an adjoiner could only adversely possess against a railroad line if the railroad line is abandoned, which requires both an intent to abandon and an act that unequivocally demonstrates that intent. However, the Court found no evidence that the railroad or the county abandoned the right-of-way. Therefore, the Court of Appeals restored the judgment of the district court finding Bhatt guilty of encroachment.

For questions, please contact David Fishman (410) 576-4234.