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Mike Martell, middle, along with neighbors Billy Orr, left, and Earl Harcrow talk about the railroad crossing on Country Lane west of Sweet Home, in a photo from 2012.

David Patton, Democrat-Herald (File)

SWEET HOME — Circuit Court Judge David Delsman has issued an opinion that although it'll have to pay its share of annual maintenance fees, a group of homeowners near Sweet Home will not have to pay an annual fee to cross railroad tracks owned by the Albany & Eastern Railroad.

Judge Delsman heard the case on Aug. 17, 2015.

The issue started three years ago when several homeowners in a small development known as Country Lane were notified by the Albany & Eastern Railroad that they would need to pay a one-time $600 crossing registration fee and an annual maintenance fee of $120. They were told they could be charged with trespassing if these fees weren't paid.

But the homeowners argued families had been using the crossing for decades without fees and that with or without an easement on their property deeds, the fact that property owners used the crossing without issue created a presumptive easement.

Attorney Dan Armstrong of Corvallis represented the homeowners and Tre Kennedy of Lebanon represented the railroad.

“This was bet-your-home litigation. The odds and costs were stacked against these folks and fighting back was risky,” Armstrong said. “But they banded together as neighbors and beat a bully. This ruling should stop this train from trying to cause similar trouble to other neighbors along its tracks.”

Armstrong’s case laid a foundation that a mistake was made on 1928 court documents when two acres of the original 75-acre property was deeded to the railroad.

“We’ve always said that in 1928 no one sells two acres to a railroad and knowingly landlocks 70 acres,” he said.

Homeowner Mike Martell was adamant he was not going to pay the railroad’s fee, saying that the railroad’s actions could have “made our homes worthless.”

“We had no choice but to fight, so we fought back,” he said. “I vowed that we wouldn’t pay one dime to the railroad and now we won’t. We faced great odds and found a great lawyer who worked with us. We beat a railroad.”

According to Judge Delsman’s opinion issued Jan. 13, homes had been constructed on the property by 1953 and all of the lots were occupied by 1963. Those families have used the crossing ever since without a demand for payment by the railroad’s past owners.

The Albany & Eastern — a short-line railroad based in Lebanon — bought the railroad in 2007 and its underlying property in 2012.

The railroad began updating its leases per federal rules and that’s when the issue of crossing fees arose. Similar activities occurred in other states as well.

The Albany & Eastern also said during the course of the suit that the proposed fees were less than the actual cost of maintaining the crossings and rights-of-way.

“The residents’ only means of access to their property was across the railroad tracks at the location of the Murray easement,” Delsman noted. “Two early residents testified that their access across the tracks was never restricted. Residents didn’t feel they were trespassing, nor did they feel they needed the railroad’s permission to cross the tracks.”

He added, “In further support of an honest belief in a claim of right, deeds to five of the eight lots contained easement language that purported to grant a right of ingress and egress over the railroad’s property.”

Delsman agreed with the plaintiffs that they had a prescriptive easement developed over time. He said to prove that, the homeowners had to prove they had an “open, notorious and adverse use for a continuous 10-year period.”

The parties agree that the homeowners had openly and publicly used the cross for more than 10 years and the railroad had done nothing to stop them.

Delsman added that there was no evidence the railroad ever granted written permission to the property owners to use the crossing, but “What is apparent from the evidence is that at some point the railroad began operating under the erroneous assumption that the Country Lane crossing was a public crossing. As a result of that mistake, the railroad took no action to limit unauthorized use of the crossing.”

He said the railroad also “allowed complete and unfettered crossing rights” and “maintained the cross for the benefit of the public and the Country Lane residents at its own expense.”

Delsman’s ruling requires the property owners to “share maintenance costs, liability risks and all other rights and responsibilities as required under federal, Oregon and local law or regulation.”

 “It’s always been a business decision that most likely will be resolved at the appellate court level,” Kennedy said.

He said the railroad has 30 days from the time an official judgment has been entered to file an appeal.

Contact Linn County reporter Alex Paul at 541-812-6114.

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