2009-05-09 / News

Judge determines foundation owns rail property

By Scott Rawdon

NEWARK- Licking County Judge Thomas Marcelain agrees that the TJ Evans Foundation owns the former Buckeye Scenic Railway property in Licking Township. Foundation members want to pave the railway bed into a bicycle path, over the objection of some of the property owners who live beside it. The residents will likely appeal Marcelain's decision.

To review, township resident Joe Simon, whose property the former rail bed crosses, said the original railroad had the right to use the property for a rail line. But, since the tracks have been removed it is no longer a rail line and the Evans Foundation, he said, doesn't have the right to pave the rail bed into a bike trail without the residents' permission. The foundation only purchased the railroad's interest in the property via a quitclaim deed, rather than the property itself.

Simon said four years ago, residents who own property along the rail bed signed a petition clearly stating that none of them wants a bike trail placed arbitrarily across his or her property.

But, according to Marcelain's decision to grant the Foundation's request for a summary judgement, the Foundation is the sole owner of the property. The Foundation purchased the property in 1984 for $100,000 from the Baltimore & Ohio Railroad Co. Marcelain wrote that the Marketable Title Act facilitates "land title transactions by allowing persons to rely on a record chain of title" of 40 years or more. Marcelain said the Foundation has a "root of title" to the property, or a warranty deed, dating all the way back to Nov. 5, 1915 to the Baltimore & Ohio Railroad Co. "Thus, the foundation has a marketable record title, and any interest arising prior to Nov. 15, 1915 are null and void under the act," he wrote.

Marcelain rejected the plaintiffs claim of an interest in the property based on the payment of real estate taxes. He wrote that the Buckeye Central Scenic Railroad paid taxes on the parcel when the foundation purchased it and the parcels were removed from the tax duplicate because a non-profit organization owned them.

Marcelain also rejected the claim that the property reverted to them once it was no longer used as a railroad. He said there was no written record to support that claim nor any right of reverter filed in nearly 60 years after the railroad acquired title by warranty deed.

"The county wanted a resolution to occur," said Jim Miller, an assistant Licking County prosecutor, who is representing the county in the matter. He said the county is waiting to see if the property owners decide to appeal the summary judgement. Miller said the county "had no bias in the case" regarding who owns the property. He added that the chief justice of the Supreme Court of Ohio had turned down the property owners' request that Licking County judges recuse themselves from hearing the case because he believed that Marcelain could judge the case fairly and impartially.

Miller said he didn't believe the foundation plans to start paving the trail simply based on Marcelain's decision. He expects the foundation will wait to begin construction.

Co-defendant Carol Cormican said she has no plans to quit. "I'm sure we will" appeal Marcelain's decision, although she said she and her co-defendants - Simon and Diane Simon; James Cormican; Bradley and Carol Smith; Herbert and Betty Dales; Gregory, Mary Jane, David, Jane, and Mark Schell, and Jene Davis - hadn't met with their lawyer as of Tuesday. "At this point, why not (appeal)?" said Cormican. "I'm tired of being pushed around."

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