St. Joseph - CSX Needs To Take Action Or They'll Be Swimming

[Schteinkuh]

Pretty sure that CSX can hold the property owner accountable to an extent, because the condition of his property directly affects the well being of CSX's. IIRC the law states that his right to ignore the corrosion ends when it affects someone else. If someone refuses to take care of their house and it collapses on to yours, you'd sue their azz, right?

[EWRice]

Thought this might be of interest. One out of my vintage photo collection. Hopefully my horrible computer skills allow it to actually show up. Photo is dated Sept of '43.

[Jochs]

Pretty sure that CSX can hold the property owner accountable to an extent, because the condition of his property directly affects the well being of CSX's. IIRC the law states that his right to ignore the corrosion ends when it affects someone else. If someone refuses to take care of their house and it collapses on to yours, you'd sue their azz, right?

Corrosion?

[justalurker66]

At this point it might be cheaper for CSX to build a bridge on the property. Just enough to retain ballast and allow trains to pass.

[J T]

Pretty sure that CSX can hold the property owner accountable to an extent, because the condition of his property directly affects the well being of CSX's. IIRC the law states that his right to ignore the corrosion ends when it affects someone else. If someone refuses to take care of their house and it collapses on to yours, you'd sue their azz, right?

Corrosion?

"Corrupt erosion"

[J T]

I would be curious to know how much more property was there when the tracks were installed. I have seen pictures taken of the shoreline in various spots 100 years ago that show quite a bit more land between a certain point and the water. Nature is a powerful thing.
Somewhere I have a picture taken along that bluff, when it was double track, showing some material added. I think it was taken in the fourties.

In the Pere Marquette book (https://tinyurl.com/j9fdmtc) there's a great photo of the double track taken from the Red Arrow Highway bridge looking to the north. Still a popular photo location today.

[Saturnalia]

The latest chapter:

http://www.wsjm.com/2017/02/19/railroad ... st-joseph/

CSX Railroad is planning to send an engineer to St. Joseph next month to talk with local officials about a section of the bluff that some fear is in danger of collapsing. Part of the bluff near 2405 Old Lakeshore looks like it could cave in, and St. Joe City Manager John Hodgson tells WSJM News he, the mayor, and representatives of Congressman Fred Upton met with CSX this month to talk about it.

“We explains what our residents are seeing and what we see in terms of the failure of the shore protection and the erosion on the bluff that we’re seeing, and that our community is so concerned because we’ve seen this kind of failure in the past,” Hodgson said.
Hodgson says parts of the bluff fell in during the 50s, 60s, and 70s. The city would like to avoid a repeat. He tells us a plan to strengthen the bluff along Old Lakeshore would involve new vegetation and possibly a repaired sea wall. Since CSX owns the property, it would be up to them to make that happen.

- See more at: http://www.wsjm.com/2017/02/19/railroad ... YW9oP.dpuf

[J T]

“We explains what our residents are seeing and what we see in terms of the failure of the shore protection and the erosion on the bluff that we’re seeing, and that our community is so concerned because we’ve seen this kind of failure in the past,” Hodgson said.

That sentence makes my brain hurt.

[justalurker66]

Isn't the problem that CSX does not own the property in question? IIRC they own properties on either side of the problem, but not the property where the failure is occurring.

Perhaps the state needs to seize the property and give it to CSX so they can effect repairs without conflict.

[Saturnalia]

Isn't the problem that CSX does not own the property in question? IIRC they own properties on either side of the problem, but not the property where the failure is occurring.

Perhaps the state needs to seize the property and give it to CSX so they can effect repairs without conflict.

It sounds like the homeowner does...sounds like at some point the railroad must have given the homeowners the land on both sides of the ROW somehow...maybe that's how they sold it to developers? I'm not sure how the Chicago and West Michigan was built...land grant?

It's comical and also aggravating at times the layers of crap that build up over time. One thing 150 years ago that's an unknown to you and buried in books somewhere...good luck!

[justalurker66]

It looks like the railroad got an easement to cross the property but was never deeded the property.

As previously posted in this thread:

According to Berrien County CSX doesn't own that section of property. The two adjacent to 2405 but not 2405.

[PatAzo]

Out of curiosity I spoke with the DEQ and asked if a property owner is required to prevent erosion or if they could choose the let nature take it's course. The DEQ said it's an open ended question but in general if it is private land you can leave it in the natural state. There is no requirement for the individual to prevent erosion. When the DEQ issues permits for erosion control structures they do not include maintenance requirements. She was familiar with the wall south of St Joe and said walls of that size were usually Corp of Engineer projects due to the costs. Maintenance of the existing wall could depend on who erected it, who owns it and if any maintenance requirements were included. The DEQ does not like vertical walls as they cause waves to scour the lake bottom and have a negative impact on marine life. The DEQ prefers "softer" approaches like rip-rap set on fabric to absorb the wave energy and native planting to support the banks.

[Super Chief]

So the owner should quit procrastinating and do something it sounds like. The Corp of Engineers isn't going to run over there tomorrow and leave a bill. Things are scheduled such as this. When WSBT interviewed the owner he was befuddled. So hope it holds until a Viewliner becomes a Surfliner?

[Jetlink]

I'm not 100% sure that the landowner is required to do anything. Why is he obligated to maintain his land to an easement holder's benefit? I gave my neighbor an easement for a driveway entrance. Just a small triangle of land about 60'X60X60' so he could access the road from his property. I'm not obligated to maintain the property on any of the sides of his triangular easement to any standard so he can have a driveway. The cost of the driveway is 100% born by him. If he told me to maintain a bank, curb, or ditch for his benefit I wouldn't be befuddled. I'd tell him he was obligated to fund the maintenance of his own driveway. I'm not sure this is much different. Of course I haven't actually read all of the property abstracts about the parcel in question.

[justalurker66]

It can be complicated. Imagine signing what appears to be an easement selling your property "for the purpose of building a railroad" and finding out that despite what appears to be clear wording stating the purpose a court rules that the land was sold and could be used for any purpose (such as an oil well). In your example you have sold a corner for the purpose of a driveway. What happens if your neighbor opens a roadside stand on that property? Can you evict them? Even with documents that seem absolutely specific a court could rule another way.

If the land owner of the property was intentionally damaging the value of their neighbor's property they could be stopped (see the battles in Beverly Shores Indiana where a neighbor closer to the lake built an addition on top of their house that obstructed the view of their neighbor up the hill). In this case, the land owner is intentionally allowing their property to fall into disrepair and it is harming the value of their neighbor's property (the ROW). But will the court see it in that light or will they consider the erosion as an act of God that does not need to be corrected by the land owner.

I believe the problem in St Joseph is a right to access the failing property. The railroad long ago obtained a right of way for a defined strip of land across the property but cannot make improvements outside of that defined strip. Is the land owner actively refusing access to their property? Or is CSX playing it safe by not trespassing outside of their ROW?

[PatAzo]

The DEQ said from a regulatory prospective a private land owner is not required to prevent erosion and that leaving the land in a natural state is a viable option. So what about liability? From a piece on land owner liability from the Association of State Wetland Managers comes the following

“Can a governmental unit or landowner be held liable for failing to remedy a natural hazard (such as beaver activity) which damages adjacent private lands?”

“A. In general, no… Courts have, with only a few exceptions, not held governmental units and private individuals responsible for naturally occurring hazards on their lands such as stream flooding or bank erosion which damages adjacent lands (e.g., erosion, flooding). However, they are liable if they increase the hazards.”

http://www.aswm.org/pdf_lib/CQ_landowne ... _26_06.pdf

This pieces references two decisions related to flooding caused by beaver dams. In Bransford v International paper Timberlands the court ruled the land owner was not liable for flooding caused by beaver dams.

“Generally, the owner of the servient estate is not required to do anything.   His obligation is to abstain from doing something, or to permit something to be done, on his estate.”  

“…the trial court found that IP Timberlands did not have an affirmative duty to remedy conditions of a purely natural origin, and determined that such a duty would place an unreasonable burden on rural landowners.”

http://caselaw.findlaw.com/la-court-of- ... 99821.html

Applying these decisions to erosion along the lake. 1) The land owner is not obligated to prevent it. 2) If the land owner were to construct a sea wall property owners down the shore could claim that his wall accelerated their erosion in which case he would have increased the natural hazard.

This would explain why the city is pursuing CSX and not the land owner. CSX has a vested interest in the erosion and resources to repair the wall.

[justalurker66]

This would explain why the city is pursuing CSX and not the land owner. CSX has a vested interest in the erosion and resources to repair the wall.

What is the city's interest in this matter? The threat seems to be to the rail line. Is the city concerned about the road east of the rail line?

“Generally, the owner of the servient estate is not required to do anything.   His obligation is to abstain from doing something, or to permit something to be done, on his estate.”

This seems to be what the landowner is doing ... abstaining from doing something or permitting something to be done on their property.

CSX could probably do something within the strip of land that they own - as long as it does not negatively affect the land owner who is letting his property erode.

If the land owner were to construct a sea wall property owners down the shore could claim that his wall accelerated their erosion in which case he would have increased the natural hazard.

It appears that all of the neighboring property owners have a working sea wall in place and this property was skipped. I do not see any property owner who would be harmed if erosion was stopped in this area.

Probably the best solution would be to condemn the property using eminent domain then have the state or railroad build an appropriate sea wall.

[justin_gram]

What is the city's interest in this matter?

St. Joe doesn't want to be known for the next deadly passenger train derailment/hazmat incident.

[redcrumbox]

It appears that all of the neighboring property owners have a working sea wall in place and this property was skipped. I do not see any property owner who would be harmed if erosion was stopped in this area.

Csx is the property owner on either side of the broken seawall.

[Jochs]

It looks like CSX has applied for state and federal permits to put up blocks to strengthen the bluff.
http://www.wsjm.com/2017/08/14/effort-t ... g-forward/