There was this fine example earlier this month.
Consumers Energy, Adrian and Blissfield Rail Road in court
Saturday
Posted Aug 13, 2016 at 11:30 AM
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Consumers filed a case in Lenawee County Circuit Court in July seeking the condemnation of about 2.5 miles of A&B's rail property that runs roughly from U.S. 223 on the west to just north of East Beecher Street on the east to create a permanent maintenance easement.
By David Panian
Daily Telegram News Editor
Consumers Energy and the Adrian and Blissfield Rail Road are in court over Consumers continuing to have access to its power lines and poles along the railroad’s property in Adrian.
Consumers filed a case in Lenawee County Circuit Court in July seeking the condemnation of about 2.5 miles of A&B’s rail property that runs roughly from U.S. 223 on the west to just north of East Beecher Street on the east to create a permanent maintenance easement. It has offered to pay A&B $555,000 for the 20-foot-wide easement plus $105,000 to expedite the process.
According to court filings, Consumers in June matched A&B’s request for $660,000, but that was after A&B requested $1.75 million for a revocable license to use its property and also sought a rental fee of $1,000 per day since the end of a lease Consumers originally signed with the Michigan Department of Transportation.
“A&B is trying to capitalize on the situation by demanding that Consumers Energy pay above-market sums to allow its existing facilities to remain,” Consumers said in a court filing.
The parties agreed to a preliminary injunction that Lenawee County Circuit Judge Anna Marie Anzalone signed Aug. 8. The order “preserves the status quo” while the case is being decided.
The order also says A&B shall not interfere with Consumers’ ability to maintain and operate its facilities. Consumers is also to give A&B 24-hour notice before performing maintenance, except in emergencies.
A&B has requested a jury trial to resolve the case.
Under Michigan law, public utilities such as Consumers can condemn property in certain situations.
The situation arose because the 20-year lease Consumers signed with MDOT in 1996 was ending. The filings said A&B assumed the lease when it bought 18.91 miles of railroad from MDOT in 2000 for $1.725 million. A&B contacted Consumers in January, approximately three weeks before the lease was to end, about extending the agreement. Consumers replied it wanted an easement because high-voltage lines like those along the railroad “are a permanent component of the company’s system,” according to a Consumers court filing.
The lines along the tracks serve about 10,000 customers in the College Park area of Adrian’s west side and an industrial customer on West Beecher Road, Consumers said in its filing.
A&B said it would consider an easement and set March 1 as a target date to reach an agreement.
Consumers’ initial offer for the easement was $116,000 on Feb. 26, which A&B called “wholly unreasonable” in a court filing on Aug. 1. A&B countered on March 22 with $660,000. Consumers said it did some research, and on May 23 gave its $600,000 offer.
Consumers said A&B on June 3 said it wouldn’t continue negotiating unless Consumers paid $156,000 by June 10 plus $31,000 by July 1, or $1,000 per day from the end of the lease.
On June 10, Consumers reiterated its $600,000 offer and on June 15 sent an advance of $125,000. A&B returned the check the next day.
Also on June 10, A&B told Consumers it would have to vacate its property by July 10, according to Consumers’ filing.
On June 21, Consumers and A&B met at A&B’s corporate office in Westland, and A&B said it would only consider a revocable license for $2 million. Two days later it lowered its price to $1.75 million.
In its filing, A&B said it considered the June 21 meeting to be back at “square one” in negotiations.
“A&B no longer believed that following the path established during the initial discussions was any longer in its best interests,” the railroad said in its Aug. 1 filing.
Consumers said it offered $660,000 on June 23 for a permanent easement, matching A&B’s May 23 offer.
Consumers said A&B’s right-of-way along the tracks is 100 feet wide. It said it would not install new equipment any closer to the existing tracks than the current line of poles and allow A&B to install communications equipment on its poles if the poles would support the equipment or A&B could pay for the cost of enhancements to the poles.
In its Aug. 1 response, A&B said granting Consumers an easement would interfere with its maintenance of the track, right-of-way and storage areas. It involves portions of the mainline track, the engine house, transload facility and primary and secondary interchanges with the Norfolk Southern Railroad.
A&B said Consumers “has no power of condemnation” against A&B’s property. It noted that Consumers never sought an easement during the 20-year lease, saying it was likely because utilities can’t condemn public lands and argued its property is public property.
The reason the railroad property is public is because railroad use is public, A&B’s filing said.
“From the earliest times in this state, property taken by railroads has been considered to be public lands,” A&B’s filing said.
In response, Consumers said A&B is a private company and its land is not public. It said A&B’s arguments show a fundamental misunderstanding between the concept of “public use” and “public property.” It said if it was truly public property, Consumers would only need the consent of the local governing body to be able to place poles and lines.
Norfolk Southern Railroad, which also is a party in the case because it has interests in the railway, also argued the railroad lands are public.
“Just because (Norfolk Southern’s) and A&B’s property is being put to a public use, this does not transform the railroad’s land into public property,” Consumers said.
A&B argued that federal law pre-empts a taking in state courts because railroads are overseen by the federal Surface Transportation Board. It cited a case where the Chicago Transit Authority tried to condemn some rail lines it leased from the Union Pacific Railroad. A&B said federal courts ruled the condemnation was pre-empted by federal law.
Consumers responded that the CTA case was an example of two competing rail systems in a dispute over land. It said Consumers and A&B are not competitors and it is not seeking to operate a railroad.
Consumers also said the CTA and Union Pacific would renegotiate their lease every 10 years under established procedures. It said the MDOT lease did not contain that kind of provision.
Consumers’ original filing also named the city of Adrian as a defendant because it might have easements across the railroad property. The city was dismissed from the case Monday.
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http://lenconnect.com/news/20160813/con ... d-in-courtWhat smells like lube oil and diesel.... Oh wait it's just my "Locomotive Breath"
when they're done at Ensel, the 2 locos operating the Z646 will do a "Light engine move" back to Mason, MI, but don't get fooled there, they might stop at the train yard in Holt, MI to switch coil/steel cars, that is all I got, the rest is on your own. Now for scanner, I'd usually listen to the "CSXT Plymouth & CN flint subs, Eaton County, MI" it's hard to hear them call in for CSX, but it's either you hear them or you don't and you have to guess... Now good luck catching the "JAIL"!!!!!
I hope to see it again on Z646 soon. Also, I remember when they had 
