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Neighbors Say Rail Line Is ‘Public Nuisance’

In plaintiff property owners’ suit alleging defendant railroad’s operation of a rail line is a “public nuisance” and asserting a claim for just compensation, the Roanoke City Circuit Court overrules defendant’s demurrers which are accompanied by materials that assert additional facts outside complaint that the court cannot consider on demurrer.

In their complaint for declaratory judgment against Norfolk Southern Railway (NS), plaintiffs allege they own land in Roanoke County, Va.; that Appalachian Power Company (APCO), a public utility, erected electrical transmission towers and lines on land “abutting and in proximity to” plaintiffs’ property; that the land on which APCO constructed its towers and transmission lines lies between plaintiffs’ property and a rail line operated by NS; and that, in erecting the power line, APCO cleared that land, cutting down and uprooting trees that insulated plaintiffs’ home from the damaging effect of NS’s public use of property for its rail operations, including transporting coal.

Plaintiffs further allege that since APCO cleared the land, their property has experienced noise and vibration as well as the discharge of smoke, dust, dirt and other particulates from the rail line onto plaintiffs’ property.

Plaintiffs assert that NS’s operation of the rail line “now constitutes a nuisance”; the operation of the rail line is a “public use,” and plaintiffs’ property has been damaged “pursuant to a public use”; and they are entitled to a declaratory judgment saying so and to a determination of just compensation, attorney’s fees and costs.

In one of its demurrers, NS averred that plaintiffs’ claims is preempted by the Interstate Commerce Commission Termination Act. The railroad has asked the Surface Transportation Board to issue a declaratory order on the preemption question, and by separate motion, asked this court to stay proceedings pending the board’s opinion. This court denied the motion to stay and overruled the portion of the demurrer based on the ICCTA. Although the preemption argument is raised by demurer, it effectively asks the court to consider facts other than those alleged in plaintiffs’ complaint, and to draw factual inferences in the light most favorable to the railroad. The court cannot do either.

In its memoranda and in oral argument, NS discusses the age of the rail line and the legal effect (if any) of whether the roadbed was condemned before or after a 1909 amendment to the state constitution. It attaches to its memoranda Photostats of (apparently) extracts from circuit court records showing when land was condemned; it bases a plea of the statute of limitations upon the date that the rail line originally was built; and bases other arguments on assertions (or assumptions) about what has (or has not) happened to the land in question during the last century or two. Plaintiffs respond in kind.

None of those factual assertions, however, are contained in the complaint. No stipulations are before the court. The court has not been asked to take oyer of any documents. These are things the court cannot consider.

The court overrules the railroad’s demurrers and denies its special plea, all without prejudice to the right to raise similar arguments at appropriate stages of the case.

Schilling v. Norfolk Southern Ry. Co. (Weckstein) No. CL 11-1047, Nov. 23, 2013; Roanoke City Cir.Ct.; C. Richard Cranwell, Henry E. Howell III, Gary A. Bryant for the parties. VLW 013-8-135, 4 pp.

VLW 013-8-135

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