Rail trails all over the country have produced debate and controversy, but the high-profile move by an Andover man to block off a mile of the Northern Rail Trail is in a class by itself.
“It’s not unprecedented, but it’s certainly unusual, very unusual,” said Eric Oberg, senior director of programs for the national Rails-to-Trails Conservancy. Oberg couldn’t remember any case of a person blocking off a well-established rail trail, although he couldn’t guarantee that it hadn’t happened.
“What we normally see with adjacent landowner disputes is almost always in the early development stage, when the trail is first acquired,” he said. “There’s concern about the effect that users on the rail trail might have on adjacent property — noise, trespassing. Having it happen in a well-established trail that has been open for 20 years is not usually the case.”
The legal status of rail corridors — long, narrow strips of land bought or seized by governments — differs from many other types of land ownership or land easement because the federal government usually was involved in the original placement, while states have approval or control of the line’s operation. Often, the corridor sat unused for years or even decades after the railroad ceased operation. By the time a trail is proposed, other uses and development have occurred nearby that didn’t consider a future use.
Battles over ownership or control of unused rail corridors often go to court, most notably ending in a 2002 state Supreme Court ruling, Malnati v. State of New Hampshire, concerning a portion of the Cheshire Rail Trail. In that case, which involved an easement dating back 180 years, the court affirmed that state purchase of rail corridors was absolute, known legally as “fee simple.”
New Hampshire purchased this portion of the corridor used by the former Boston & Maine Railroad in 1995, years after it was last used. It has been an active trail for two decades with an estimated 100,000 users annually, although not all of them pass through Andover.
The current argument began two weeks ago when landowner Leonard Caron placed a series of concrete barriers at each end of a stretch of the trail, blocking access. Caron says he was denied use of the trail for equipment to reach several parcels of land that otherwise are blocked off, even though he had a history of using it when the rail line was active.
Since the news became public, the attorney general’s office has gotten involved and a number of politicians, including Gov. Ayotte, have said the trail should be reopened quickly.
A sign placed at the blockages by the New Hampshire Department of Transportation, which oversees rail trails, says only “the closure may remain in place for some time.”
As for the national conservancy, Oberg said the group was watching the case. “We’d love to have it adjudicated through a legal process. That is what should have happened … not unilaterally being judge and jury and cutting off public access.”
