When John Clark, owner of the Cheddar Box, bought property in 1983, he didn’t know anything about the details of railroad right of way and how it was to be recorded in land deeds. His deed stakes out two tracts situated near U.S. 19-23 and the railroad, but fails to specify what part of the land, if any, falls within the highway or railroad right of way.
Most often, deeds will state land ownership with the exception of a specific number of feet given to right of way. Clark’s doesn’t.
Consequently, when Clark wanted to develop land immediately behind the Cheddar Box store it was news to him that he was unable to without permission from the Great Smoky Mountains Railway.
“It’s like you’ve got to know the answer before you ever even know the question,” Clark said of not realizing how the railroad would play into his plans.
In a letter dated Feb. 25, 2005, Clark received an order from a railroad attorney to stop any and all new construction.
“Further, it will be necessary for you to remove from the right-of-way any and all improvements and/or other structures or facilities which have resulted from prohibited activities,” the letter states.
The exchange has created a buzz in downtown Dillsboro where business owners are worried about how enforcement of the railroad’s right of way will affect their property.
“If they enforce their 100 feet right of way from the middle of the tracks, that would take in all of Front Street,” said Emma Wertenberger, owner of the Squire Watkins Inn, referring to the downtown road that runs parallel to the tracks.
The 100 feet right of way was created back when railroads were first established as commercial freight and passenger carriers. The purpose was to provide railroads with room to store their equipment. According to an article published in North Carolina Lawyers Weekly, a “presumption of conveyance” provision allowed for railroads to construct their tracks and if landowners did not sue for compensation within a two-year period, right of way automatically was determined to be 100 feet in either direction from the center of the tracks. However, the commercial lines never really bothered with development along the right of way.
“Over the last 100 years they’ve just not been enforcing it,” Wertenberger said.
As the major railroads have been selling out to short lines like the tourist-based Great Smoky Mountains Railway, the companies are putting a greater emphasis on preserving right of way, both in terms of protecting the view and making room for future expansion.
However, it’s not existing construction that the railroad is interested in, said Kim Battle, GSMR general manager.
“We have no interest whatsoever in relocating or requesting for current business owners to relocate their business,” Battle said. “It’s the future construction we’re looking at.”
It’s a sticky situation. Towns like downtown Dillsboro, with their quaint storefronts, ample shopping and restaurants, are crucial to the train’s success, as popular boarding and stopover locations.
“We appreciate the shop owners in Dillsboro and need them for the viability of our departures there,” Battle said.
However, a property owner who holds land within the right of way and hasn’t built on it yet could find themselves out of luck if the railroad doesn’t see fit to grant a license allowing for construction. And if a property owner should face some sort of disaster like a fire, they would have to get the railroad’s permission to rebuild.
How property owners along the line may potentially be affected depends on how a track map created in 1927 reads. The GSMR inherited the map when the railroad was sold. It shows how wide rights of ways are.
“We have 25, 50 and up to 100 feet all across the line,” Battle said.
Battle said that property owners who are unsure about how much right of way crosses their property may contact the railroad to find out.
“I would think that most deeds, if they were properly titled, then that would show how much right of way there is,” Battle said.
Another option is to have a title search performed. A title search typically goes back 40 years, said Realtor Jack Debnam of Western Carolina Properties, located in Dillsboro. When Debnam built his office he accounted for the railroad.
“My surveyor picked it up in his paperwork,” Debnam said.
A title search is a normal part of buying and selling a piece of property. Selling property within the right of way could become more difficult as GSMR officials begin enforcing their easement regulations, as full-disclosure of such encumbrances is required by law, said attorney Kim Lay of Melrose, Seago and Lay.
Or, if litigation is an affordable option, property owners can choose to ignore the railroad’s requirement for a license to build and wait for the company to file a lawsuit. If the company files, the burden of proof to show ownership of right of way falls on the train.
Business owners say that the issue goes beyond Dillsboro, into any town where a railroad is located.
“We’re trying to mobilize everyone in the state,” Wertenberger said.
The law, they say, is antiquated and did not account for tourist-type operations. The GSMR is looking at expanding as ridership increases — last year the train carried 187,000 passengers.
A potential deal is in the works to take over a section of rail between Murphy and Andrews, where the train’s service currently ends. The state of North Carolina owns the track now, which hasn’t been used in a long time and is in need of repair to again be in service.