Montgomery County, Maryland v. Ajay Bhatt,

No. 36, September Term, 2015. Opinion by 

Harrell, J.

RAILROADS - ADVERSE POSSESSION 

Adverse possession does not lie against lands devoted to public use and owned by State 

or local government, such as public highways. Because railroad lines, even if privatelyowned, have been treated as equivalent to public highways, a railroad line reserved for 

public use is not subject to a claim of adverse possession, except where abandonment of 

the public use is clear. 

RAILROADS – ABANDONMENT OF RIGHT-OF-WAY 

Abandonment of a rail line requires both an intent to abandon and an act that 

demonstrates unequivocally that intent. The interim use of a former rail line’s right-ofway for a hiker/biker trail as an interim use, under the Federal National Trails System 

Act, does not demonstrate an intent to abandon the public use right-of-way, especially 

where a new ultimate use of the right-of-way as a commuter rail line is intended. 
IN THE COURT OF APPEALS

OF MARYLAND

No. 36 

SEPTEMBER TERM, 2015 

 

MONTGOMERY COUNTY, MARYLAND 

v. 

AJAY BHATT 

 

 Battaglia, 

Greene,

Adkins,

McDonald,

 Watts, 

Rodowsky, Lawrence F., (Retired, 

Specially Assigned), 

Harrell, Glenn T., Jr. (Retired, Specially

Assigned),

 JJ.

 

Opinion by Harrell, J.

 

Filed: January 22, 2016 

Circuit Court for Montgomery County 

Civil Case No. 8929D

Argued: December 3, 2015
Driving that train, high on cocaine,

Casey Jones you better watch your speed. 

Trouble ahead, trouble behind, 

And you know that notion just crossed my mind. 

-The Grateful Dead, Casey Jones, on 

Workingman’s Dead (Warner Bros. Records 1970). 

Although the record of the present case does not reflect a comparable level of 

drama as captured by the refrain of “Casey Jones,” it hints at plenty of potential trouble, 

both ahead and behind, for a pair of public works projects (one in place and the other 

incipient) cherished by the government and some citizens of Montgomery County. 

The Capital Crescent Trail is a well-known hiker/biker route that runs between 

Georgetown in the District of Columbia and Silver Spring, Maryland. Its path was used 

formerly as the Georgetown Branch of the Baltimore & Ohio (B&O) Railroad.1

 After the 

trains stopped running in 1985, the property was transferred in 1988 to the government of 

Montgomery County, Maryland, via a quit-claim deed for a consideration of $10 million. 

It is planned that the Maryland portion of the former rail line (and current interim 

hiker/biker trail) will become the proposed Purple Line, a commuter light rail project 

between Bethesda and Silver Spring. This case raises, among other questions, whether a 

private landowner adjacent to the rail line may acquire by adverse possession a portion of 

the right-of-way through erection of a fence and installation of a shed that encroached for 

 

1 Montgomery Cnty Dep’t of Parks, Capital Crescent & Georgetown Branch 

Trails, http://www.montgomeryparks.org/PPSD/ParkTrails/trails_MAPS/Crescent.shtm 

[https://perma.cc/39HX-VGTM]. 
2

more than twenty years upon the railroad right-of-way. Under the circumstances present 

here, we conclude that the private property owner cannot prevail. 

BACKGROUND

Respondent Ajay Bhatt owns 3313 Coquelin Terrace (a subdivided, single-family 

residential lot – “Lot 8” – improved by a dwelling) in Chevy Chase, Montgomery 

County, Maryland. He purchased this property in 2006 from his aunt, who owned the 

property since at least the 1970s. The lot abuts the Georgetown Branch of the B&O 

Railroad/Capital Crescent Trail. In 1890, the right-of-way that was the rail line (and is 

today the hiker/biker trail) was conveyed in a fee-simple deed from George Dunlop, 

grantor, to the Metropolitan Southern Railroad Company (“the Railroad”), grantee. The 

1890 Deed conveyed to the Railroad a “strip, piece or parcel of land. . .Beginning at 

Station 59 plus 52, a point on the located centre line of the Metropolitan Southern 

Railroad, the same being in Rock Creek and on the line dividing the lands of Richard Ray 

and the said George Dunlop.” The Deed established a right-of-way 45 feet on either side 

of the center line of the tracks throughout the rail line. A freight-hauling operation was 

maintained thereafter on the rail line right-of-way until 1985. 

The right-of-way was obtained by the County via quitclaim deed in 1988 from the 

Railroad pursuant to the federal Rails-to-Trails Act.2

 The right-of-way is held and 

 

2 See National Trails System Act, 16 U.S.C § 1241, et seq. 
3

maintained under a “Certificate of Interim Trail Use” pursuant to 49 CFR 1152.29.3 This 

“Certificate” allows the County to preserve the land as a hiker/biker trail until the County 

chooses whether and when to restore a form of rail service within the right-of-way. Thus, 

the right-of-way is listed currently by federal regulators in a “rail bank” under a 

presumption that the railway may be restored for rail use in the future. It is the County’s 

intent to develop within the right-of-way the planned “Purple Line” commuter rail. 

 

3 This section provides:

If any state, political subdivision, or qualified private organization is 

interested in acquiring or using a right-of-way of a rail line proposed to be 

abandoned for interim trail use and rail banking pursuant to 16 U.S.C. 

1247(d), it must file a comment or otherwise include a request in its filing 

(in a regulated abandonment proceeding) or a petition (in an exemption 

proceeding) indicating that it would like to do so. The comment/request or 

petition must include: 

(1) A map depicting, and an accurate description of, the right-ofway, or portion thereof (including mileposts), proposed to be 

acquired or used;

(2) A statement indicating the trail sponsor’s willingness to assume 

full responsibility for: 

(i) Managing the right-of-way; 

(ii) Any legal liability arising out of the transfer or use of the 

right-of-way (unless the user is immune from liability, in 

which case it need only indemnify the railroad against any 

potential liability); and 

(iii) The payment of any and all taxes that may be levied or 

assessed against the right-of-way; and 

(3) An acknowledgment that interim trail use is subject to the 

sponsor’s continuing to meet its responsibilities described in 

paragraph (a)(2) of this section, and subject to possible future 

reconstruction and reactivation of the right-of-way for rail service. 

49 C.F.R. § 1152.29(a). 
4

On 18 October 2013, Montgomery County issued to Bhatt a civil citation asserting

a violation of § 49-10(b) of the Montgomery County Code4, which prohibits a property 

owner from erecting or placing “any structure, fence, post, rock, or other object in [a 

public] right-of-way.” The factual predicate of the claimed violation was the placement 

and maintenance by Bhatt’s predecessors-in-interest of Lot 8 of a fence and shed within 

the former rail line (and current hiker/biker trail) right-of-way, without a permit. The civil 

citation case was heard originally on 21 January 2014 in the District Court of Maryland, 

sitting in Montgomery County. The District Court found Bhatt guilty of a violation of 

 

4 The exact language of § 49-10 prohibits a person from doing the following 

within a public right-of-way: 

(a) do any reconstruction or maintenance work; or

(b) erect or place any structure, fence, post, rock, or other object in the 

right-of-way, except: 

(1) mail boxes mounted on a support that will bend or break away 

on impact by a vehicle; 

(2) individual residential newspaper boxes mounted on a support 

that will bend or break away on impact by a vehicle;

(3) street trees placed and maintained under Section 49-33(j); 

(4) ground cover placed and maintained under Section 49-33(k); 

(5) a temporary, removable obstruction or occupation of a right-ofway installed under a permit issued under Section 49-11; or 

(6) as otherwise permitted by law. 

Any object placed in the public right-of-way under this subsection must not 

unreasonably impede use of a sidewalk or other right-of-way by pedestrians 

or persons in wheelchairs, or impede or endanger automobiles or other 

vehicles. 

Mont. Cnty. Code 2007, § 49-10. The exceptions provided in § 49-11 apply only after an 

individual has received a permit from the Director of Permitting Services, but still do not 

allow a private citizen to place a permanent structure on the public right-of-way. See 

Mont. Cnty. Code § 49-11. 
5

§ 49-10(b) and ordered him to remove the fence and shed encroaching upon the County’s 

right-of-way. The District Court required Bhatt to pay $5.00 in court costs, but 

suspended the $500 fine imposed previously by the County. Bhatt appealed timely to the 

Circuit Court for Montgomery County. 

The appeal was heard de novo by the Circuit Court on 28 August 2014. The 

County presented evidence establishing that its right-of-way lies immediately adjacent to 

the rear property line of Lot 8. Ralph Wolfe, a right-of-way inspector, and Thomas 

Yoakum, a certified land surveyor, relied on aerial photographs, the 1890 Dunlop Deed, 

Bhatt’s deed and subdivision plat, and geographical information system (“GIS”)

photographs from which to conclude that Bhatt’s fence and shed were located on the 

County’s right-of-way. The parties stipulated that: 

[T]he fence goes beyond the lot line of the – what’s called Lot 8[the Bhatt 

lot], in the plat for the subdivision, that was created in 1946. We could 

stipulate to that. We cannot stipulate that the property beyond that lot line 

is owned by the county, or that it was owned by the railroad. We’re not 

going to do that. But we can stipulate the fence goes beyond the lot line 

that was established in the plat.

With regard to the type of real property interest held by the County in the right-ofway, a Montgomery County real property attorney and expert accepted by the court in 

“real estate law and titles” was called by Bhatt to present his conclusions regarding the 

1890 Deed and the County’s interest. The expert testified that the County received from 

the Railroad “a deed of bargain and sale so it was a transfer of the fee interest in the 

property and the Railroad held title to that property until 1988.” Because the County 
6

owned the right-of-way in fee simple, he believed it impossible, as a matter of law, for 

the County to have acquired a mere easement interest in the right-of-way. 

Bhatt’s defense to the charged violation of § 49-10(b) was that he owned the 

encroached-upon land by adverse possession established by his predecessors in interest, 

who erected the fence. From memories of his childhood visits to his aunt’s home on Lot 

8, Bhatt testified that the fence had been present, as far back as he could remember. He 

recalled specifically seeing the fence in 1977 when he was eight years old. Additional 

witnesses presented by Bhatt testified that the fence had been present since the 1960s. 

No evidence was presented as to when the fence was installed exactly or why it was 

placed beyond the rear lot line of Lot 8.5

 The Circuit Court concluded that the fence had 

been present on Lot 8 since 1960. 

Bhatt argued that, because the fence had been located beyond the property line of 

Lot 8 since at least 1963, the Railroad was obliged to take action to remove it prior to the 

maturation of the twenty year period for adverse possession.6 Bhatt testified further that 

he applied for a permit to (and was granted by) the County in 2013 to repair and replace 

the fence. Without hiring a surveyor (and reportedly being himself unaware of the actual 

 

5

 The date of installation of the shed, which is also within the fenced-in 

encroachment area, was not established separately. This gap in proof is not material 

because the fence encircled the shed and delineated the boundaries of the greater 

encroachment. 

6

 Bhatt argued that the fence was erected initially in 1963, so the railroad company 

had until 1983 to take action to cause it to be removed before his predecessors-ininterest’s claim to the property ripened through adverse possession. 
7

property lines of the subdivided Lot 8), Bhatt based his application on the belief that the 

original fence was located on or within the boundaries of Lot 8. He presented additional 

evidence that the County had installed chain link fences on the hiker/biker trail and 

performed maintenance on the property outside his fence, but that the County did not 

perform any maintenance within his fence line. 

On 31 December 2014, the Circuit Court vacated the District Court’s judgment 

and dismissed the violation citation issued by the County. Following post-trial motions, 

an amended memorandum opinion was filed by the Circuit Court on 2 March 2015. In 

that opinion, the Circuit Court concluded penultimately (on the strength largely of Bhatt’s 

real property attorney’s expert opinion testimony) that the County did not have a “right of 

way” easement over the former rail line, but rather had been conveyed a fee simple 

interest in 1988. The expert opined that the term “public right-of-way,” as used in the 

ordinance, referred solely to one held by easement. Because the County thus did not 

have a “right of way” over the property, Bhatt could not be considered in violation of 

§ 49-10(b). As this reasoning continued, because the conveyance to the County did not 

result in the acquisition of a “right of way,” the Circuit Court concluded ultimately that 

Bhatt had a creditable claim for adverse possession. Moreover, the hearing judge did not 

feel obliged to conduct an abandonment analysis: “An abandonment analysis is 

unnecessary because the land was granted in fee simple, and cannot reasonably be 

defined as a right-of-way under federal, state, or local laws.” The Circuit Court made no 

final declaration or determination, however, as to who held title to the encroachment area 
8

because it was not asked by the parties to decide that point conclusively in the context of 

the Code enforcement dispute that was at the heart of the litigation. 

The County petitioned this Court for a writ of certiorari. On 17 June 2015, we 

granted the Petition, Montgomery County v. Ajay Bhatt, 443 Md. 234, 116 A.3d 474 

(2015), to consider the following questions: 

1) Did the lower court err in holding that the 1890 deed from George 

Dunlop to the Metropolitan Southern Railroad Company did not convey a 

right-of-way? 

2) Did the County prove that the Respondent’s fence and shed encroached 

upon the right-of-way that was originally purchased by the Metropolitan 

Southern Railroad Company and later conveyed to the county for the 

Georgetown Branch/Capital Crescent Trail?

3) Is a railroad right-of-way susceptible to a private claim for adverse 

possession via an adjacent landowner’s encroachment when the right-ofway was actively used for a railway line and when there was no evidence of 

abandonment by the railroad? 

4) Did the lower court err in holding that the Respondent acquired title to a 

former railroad right-of-way by adverse possession? 

In order to resolve this case, we need answer only the last two questions. In so doing, the 

result is that we shall reverse the judgment of the Circuit Court for Montgomery County. 

STANDARD OF REVIEW 

In reviewing an appeal from a judgment entered following a bench trial, under 

Maryland Rule 8-131(c), we “will review the case on both the law and the evidence [and] 

will not set aside the judgment of the trial court on the evidence unless clearly 

erroneous.” Factual findings will be reviewed for clear error, but questions of law 

“require our non-deferential review.” Breeding v. Koste, 443 Md. 15, 27, 115 A.3d 106, 
9

113 (2015). Here, we are asked to consider the Circuit Court’s interpretation of the 1890 

Deed and its conclusion that the County interest was subject to divestiture by adverse 

possession. Both questions, if needed to be answered, are legal ones subject to de novo 

scrutiny. 

DISCUSSION

I. Contentions 

The County contends that the Circuit Court erred in concluding that the quality of the 

interest the County holds in the former rail line strip of land was not susceptible to being 

characterized as a “right of way.” The County maintains that “there is no exclusive 

manner in which the title to a right of way must be held.” The County contends further 

that, because this Court has considered previously a railroad line to be analogous to a 

public highway for most purposes, the land in question is not subject to an adverse 

possession claim. 

Bhatt responds that he proved sufficiently all of the required elements to sustain a 

colorable adverse possession claim to the encroached area within his fence. He argues 

that “the County has not cited a single Maryland decision holding that a privately-owned 

railway is immune to adverse possession.” Furthermore, Bhatt rejects the public 

highway-railroad line analogy because the land was in private, not public, use during its 

operation as a rail line (when his adverse possession interest ripened assertedly to 

fruition). 

II. Analysis 

a. Railroads as Public Highways 
10 

“A railroad is in many essential respects a public highway, and the rules of law 

applicable to one are generally applicable to the other.” Read v. Montgomery Cnty., 101 

Md. App. 62, 68, 643 A.2d 476, 478 (1994) (internal citation omitted). Railroads are 

owned frequently by private corporations, but this “has never been considered a matter of 

any importance that the road was built by the agency of a private corporation [because] 

the function performed is that of the State.” Olcott v. Fond du Lac Cty., 83 U.S. 678, 695 

(1872). Railroad companies operate as a public use and “are not viewed strictly as 

private corporations since they are publicly regulated common carriers. Essentially, a 

railroad is a highway dedicated to the public use [and is granted] the status of a quasipublic corporation.” Chevy Chase Land Co. v. United States, 355 Md. 110, 149, 733 

A.2d 1055, 1076 (1999) (citing Marthens v. B & O R. Co., 289 S.E.2d 706, 711 (W. Va. 

1982)). 

Another well-cited example of this dedication to public use is the exercise by 

railroads of the power of eminent domain, “a power reserved only to the government and 

those the government has annointed.” Chevy Chase Land Co., 355 Md. at 147, 733 A.2d 

at 1075; see also Riden v. Philadelphia, B. & W. R. Co., 182 Md. 336, 344, 35 A.2d 99, 

102 (1943) (“By express provision of the Maryland Railroad Law, every railroad 

company incorporated under the laws of this State is empowered to acquire land either by 

purchase or condemnation for as many sets of tracks as are deemed necessary from time 

to time between its termini within the State”); see Md. Const. Art. III, § 40. The Supreme 

Court explained: 
11 

Very early the question arose whether a State’s right of eminent domain 

could be exercised by a private corporation created for the purpose of 

constructing a railroad. Clearly it could not, unless taking land for such a 

purpose by such an agency is taking land for public use. The right of 

eminent domain nowhere justifies taking property for a private use. Yet it 

is a doctrine universally accepted that a State legislature may authorize a 

private corporation to take land for the construction of such a road, making 

compensation to the owner. What else does this doctrine mean if not that 

building a railroad, though it be built by a private corporation, is an act 

done for a public use? And the reason why the use has always been held a 

public one is that such a road is a highway, whether made by the 

government itself or by the agency of corporate bodies, or even by 

individuals when they obtain their power to construct it from legislative 

grant.

Olcott, 83 U.S. at 694-95. The Maryland courts “have long considered a railroad line as 

analogous to a public highway,” see Chevy Chase Land Co., 355 Md. at 147, 733 A.2d at

1075, and we have been offered no compelling reason in the present case to reject that 

analogy. 

b. May a public highway (or any portion of its right-of-way, no matter the type 

of real property interest by which it is held) be possessed adversely by an 

abutting private citizen? 

A claim for adverse possession requires the establishment of a very specific set of 

well-known elements7

, but first the subject property must be subject to this type of claim 

before considering whether the elements may exist in a given case. The Circuit Court 

concluded that Bhatt touched all of the bases of a viable claim of adverse possession by 

 

7

 To state a claim for adverse possession: “[T]he claimant must show possession 

of the claimed property for the statutory period of [twenty] years.... Such possession must 

be actual, open, notorious, exclusive, hostile, under claim of title or ownership, and 

continuous or uninterrupted for the twenty-year period.” Breeding v. Koste, 443 Md. 15, 

28, 115 A.3d 106, 113-14 (2015)(citing White v. Pines Cmty. Improvement Ass’n, Inc.,

403 Md. 13, 36, 939 A.2d 165, 178 (2008)). 
12 

showing that his “possession of the property was actual, open, notorious and visible, 

exclusive, hostile, and continuous for the twenty-year statutory period.” We have held, 

however, that “nothing is more solidly established than the rule that title to property held 

by a municipal corporation in its governmental capacity, for a public use, cannot be 

acquired by adverse possession.” Seijack v. City of Baltimore, 270 Md. 640, 644, 313 

A.2d 843, 846 (1974). Because a railroad is a quasi-public corporation under established 

Maryland law, it follows, to our thinking, that a railroad is counted among these 

municipal corporations and its real property is not subject to a claim of adverse 

possession under all but the most narrow circumstances. 

The seminal case in Maryland on the issue of the ability to possess adversely the 

property of a municipal corporation is Ulman v. Charles St. Avenue Co., 83 Md. 130, 

144, 34 A. 366, 369 (1896), which decided that “an abutting owner cannot, by 

encroaching on a public road, acquire title adverse to the public rights therein.” “An 

encroachment on a highway is settled conclusively in Maryland to be a public nuisance, 

which can never grow by prescription into a private right.” Sieling v. Uhl, 160 Md. 407, 

153 A. 614, 620 (1931). Thus, the “well-established rule of the common law is [ ] that 

‘the common right of way’ cannot be lost by the attempted adverse possession of a 

private individual.” Id. (citation omitted). 

In Ulman, a turnpike company (a State franchisee) acquired in 1854 rights to a strip of 

land of a width of 66 feet within which it was authorized to build a road. “Within a year 

or two thereafter, [the company] constructed a road of a width varying from 20 to 38 feet 

only.” Ulman, 83 Md. at 140, 34 A. at 367. The company did not seek thereafter to 
13 

widen the road until over 40 years after the initial acquisition, at which time it sought to 

expand the width of the active road to the entire 66 feet. Ulman, 83 Md. at 140-41, 34 A. 

at 367-68. Between the completion of the initial road construction, but prior to the 

company’s intended expansion, an adjacent landowner built a sidewalk, installed drains, 

and planted trees on 15 feet of land encroaching into the turnpike company’s strip. 

Ulman, 83 Md. at 139-40, 34 A. at 367. The landowner maintained these improvements 

for more than the statutory period for adverse possession and sought to claim title by 

adverse possession. Id. Although the turnpike company had not made active use as a 

road of the disputed strip, this Court held that an adjacent landowner could not maintain 

an adverse possession claim to the land. Ulman, 83 Md. at 143-44, 34 A. at 368. 

Because “time does not run against the state, or the public,”8 it followed that public 

highways are not subject to a claim for adverse possession, except in the limited 

circumstances of a clear abandonment by the State. By parity of reasoning applied to the 

present case, railway lines would also not be subject to a claim for adverse possession, 

without evidence of clear abandonment or a clear shift away from public use. 

c. Use of the right-of-way

Bhatt relies on the “notion that municipal property not devoted to a public use can 

be so acquired” through adverse possession. Seijack, 270 Md. at 644, 313 A.2d at 846 

 

8 See Ulman, 83 Md. at 145, 34 A. at 368 (“To protect highways from encroachments 

that it is the business of no one to resist, requires that the [company] be allowed to 

resume its rights at any distance of time, disregarding any loss to those who have 

appropriated and erected improvements on the public domain”). 
14 

(emphasis supplied). We do not disagree that property, at one time dedicated to the 

public use, but abandoned subsequently, may be possessed adversely. The general rule in 

Maryland has been: 

that the right and title to a mere easement in land acquired by a quasi-public 

corporation, either by purchase, condemnation or prescription, for a public 

purpose is dependent upon the continued use of the property for that 

purpose, and when such public use is abandoned the right to hold the land 

ceases, and the property reverts to its original owner or his successors in 

title.

East Washington Ry. Co. v. Brooke, 244 Md. 287, 293, 223 A.2d 599, 603 (1966). We 

do not find in this record, however, that there is any evidence of abandonment by the rail 

line operator (or Montgomery County) or that the right-of-way was taken out of public 

use such that a claim for adverse possession could ripen within this right-of-way. 

In order to be considered “immune” from a claim for adverse possession, the rightof-way must remain in public use. There is “[n]o satisfactory single clear-cut rule 

regarding what is a public use, which can decide all cases, [that] has yet been 

formulated.” Prince George’s Cnty. v. Collington Crossroads, Inc., 275 Md. 171, 181, 

339 A.2d 278, 284 (1975). Public use does not require necessarily that the public must

“literally or physically be permitted to use the property.” Id. The meaning “under 

Article III, § 40, of the [Maryland] Constitution is broader than literal use by the 

members of the public, and . . . actual use of the condemned property by the general 

public is not necessary.” Green v. High Ridge Ass’n, Inc., 346 Md. 65, 74, 695 A.2d 125, 

129 (1997). 
15 

Bhatt leans heavily on Read, 101 Md. App. at 67, 643 A.2d at 478, to conclude 

that the right-of-way here was susceptible to an adverse possession claim because the 

right-of-way was no longer in public use. The intermediate appellate court’s opinion in 

Read is not persuasive because it focuses on the distinction “between property held by a 

railroad company as an easement and property held by a railroad company in fee simple,” 

id, a distinction we find not material in the context of the present case.9

 

9 Historically, a right-of-way “in its strict meaning, is ‘the right of passage over 

another man’s ground;’ and in its legal and generally accepted meaning, in reference to a 

railway, it is a mere easement in the lands of others, obtained by lawful condemnation to 

public use or by purchase.” Chevy Chase Land Co. v. United States, 355 Md. 110, 124, 

733 A.2d 1055, 1062 (1999) (citing 2 Elliott on Railroads § 1158, at 628 n. 77 (3d. ed. 

1907)). At that time, the term “right of way” was equated typically to an easement, rather 

than a fee-simple interest. Chevy Chase Land Co., 355 Md. at 124-25, 733 A.2d at 1062 

(citing 2 Elliott on Railroads § 1158, at 628 n. 77 (3d. ed.1907)). We explained further 

that “[i]n railroad parlance, the term ‘right of way’ has two meanings: in one sense it is 

‘the strip of land upon which the track is laid’; in the other sense it is ‘the legal right to 

use such strip,’ and in this sense it usually means the right of way easement.” Chevy 

Chase Land Co., 355 Md. at 124, 733 A.2d at 1062 (citations omitted). 

The phrase “right of way” is more properly, however, a term of art, rather than a term 

of science or law: “Maryland courts have often construed deeds of ‘rights-of-way’ to 

railroads as easements or have used the terms ‘easement’ and ‘right-of-way’ 

synonymously.” Chevy Chase Land Co., 355 Md. at 125, 733 A.2d at 1063. It is wellsettled “that a deed to a railroad, even though it characterizes the grant as conveying a 

right-of-way, may convey an estate in fee simple.” Chevy Chase Land Co., 355 Md. at

128, 733 A.2d at 1064. Thus, for the purposes of this litigation (i.e., the scope and 

application of Montgomery County Code § 49-10(b)), it is immaterial whether the rightof-way in question was held in fee simple or by easement. Indeed, given the clear 

purpose of § 49-10 of the Montgomery County Code (see n.4 supra), it is apparent to us 

that it was not the intent of the County Council to draw a distinction between public 

rights-of-way held in fee simple and those by easement. 

It would be contrary to a cardinal tenet of legislative interpretation principles, i.e., 

avoidance of a nonsensical construction, to conclude that the Council intended to restrict 

improvements only within public rights-of-way held in easement, but not those held in 

fee simple. The contretemps over whether the interest in land conveyed to the Railroad 

 

(Continued...)
16 

In Read, the Court of Special Appeals drew a distinction between land granted to a 

railroad by Congress and land acquired privately in fee simple. Read, 101 Md. App. at

72, 643 A.2d at 480. “If the land to which appellants claim title was not acquired by the 

Railroads through a public grant, then it must be determined whether those portions, in 

which the Railroads acquired an interest in fee simple, were devoted to a public use.” Id. 

Because Read was a case reaching the intermediate appellate court upon the grant of 

summary judgment in the trial court, the Court of Special Appeals concluded, in 

remanding the matter, that the answer to this question was, in the first instance, reserved

for the trier of fact: 

whether there was a bona fide intent to preserve the right of way for actual 

railroad use, and the court could properly conclude that the acts and 

conduct of defendant were incompatible with the continued exercise of the 

easement, that the discontinuance of the line was not merely temporary, and 

that the right of way was abandoned and the easement terminated. 

Read, 101 Md. App. at 72, 643 A.2d at 481 (citing Maryland & Pa. R.R. v. MercantileSafe Deposit & Trust Co., 224 Md. 34, 41, 166 A.2d 247, 251 (1962)). In the present 

case, there remains nothing more for the trier of fact to resolve. 

The 1890 Dunlop Deed shows that the purchase made by the Railroad was from a 

private landowner. There was no evidence adduced by Bhatt supporting a conclusion that 

 

(...continued)

and the County as being fee-simple, not an easement, is but a “furiously-contested moot 

question,” to borrow a well-turned phrase coined by Judge Moylan of the Court of 

Special Appeals (in Holloway-Johnson v. Beall, 220 Md. App. 195, 206, 103 A.3d 720, 

727 (2014) cert. granted, 442 Md. 194, 112 A.3d 373 (2015)). 
17 

the right-of-way was abandoned and was not being used by the public, even during the 

period from 1985 when the freight service ended and 1988 when the property was 

conveyed to the County and became a hiker/biker trail as an interim public use. Rather, 

Read supports the County’s argument because the Court of Special Appeals in Read

concluded essentially that the railroad there was acting “as a quasi-public corporation, 

functioning to promote the public welfare.” Read, 101 Md. App. at 68, 643 A.2d at 479. 

Although the railroad in Read was no longer operating trains on the right-of-way, the 

Court of Special Appeals concluded nonetheless that it was possible for the property to be 

considered as coming within the definition of “public use.” 

Relevant also to this particular inquiry, in 1983, Congress enacted the Rails-toTrails Act to provide a different avenue for railroads that had ceased to operate, but did 

not intend to abandon its right-of-way as a public use. Chevy Chase Land Co., 355 Md. 

at 163, 733 A.2d at 1084. Subsection (d) of 16 U.S.C. § 124710 provides another option 

 

10 The specific language of this section provides in relevant part: 

[I]n furtherance of the national policy to preserve established railroad 

rights-of-way for future reactivation of rail service, to protect rail 

transportation corridors, and to encourage energy efficient transportation 

use, in the case of interim use of any established railroad rights-of-way 

pursuant to donation, transfer, lease, sale, or otherwise in a manner 

consistent with this chapter, if such interim use is subject to restoration or 

reconstruction for railroad purposes, such interim use shall not be treated, 

for purposes of any law or rule of law, as an abandonment of the use of 

such rights-of-way for railroad purposes. If a State, political subdivision, or 

qualified private organization is prepared to assume full responsibility for 

management of such rights-of-way and for any legal liability arising out of 

such transfer or use, and for the payment of any and all taxes that may be 

 

(Continued...)
18 

for railroad companies defending against potential contentions of abandonment. 

Recognizing that railroads held typically their rights-of-way under easements, “[b]y 

deeming interim trail use to be like discontinuance rather than abandonment, Congress 

prevented property interests from reverting under state law.” Preseault v. I.C.C., 494 

U.S. 1, 8, 110 S. Ct. 914, 919-20 (1990) (internal citation omitted). When a railroad track 

is considered for interim trail use, “the rail corridor is held in a national ‘rail bank,’ over 

which federal regulators retain jurisdiction for the possibility of future rail use.” Chevy 

Chase Land Co, 355 Md. at 166, 733 A.2d at 1085. 

To show abandonment, a claimant must show “an intention to abandon, and an overt 

act, or an omission to act, by which such intention is carried into effect.” Cooper v. 

Sanford Land Co., 224 Md. 263, 266, 167 A.2d 602, 604 (1961). To determine whether a 

party intended to abandon a rail line (and, therefore, the public use), the inquiry should 

be: 

If it were to be found that the contemplated use were within the scope of 

the easement this could be evidence of a lack of intention to abandon. If 

the contemplated use were not within the scope of the easement, then 

unless it be found that some other permitted use is being made, it is 

possible that an intention to abandon might be found, although if the 

 

(...continued)

levied or assessed against such rights-of-way, then the Board shall impose 

such terms and conditions as a requirement of any transfer or conveyance 

for interim use in a manner consistent with this chapter, and shall not 

permit abandonment or discontinuance inconsistent or disruptive of such 

use. 

16 U.S.C § 1247(d) (emphasis added). 
19 

contemplated use is found not to be within the scope of the easement this 

would not necessarily establish an intention to abandon.

Peck v. Baltimore Cnty., 286 Md. 368, 377-78, 410 A.2d 7, 11 (1979). Non-use alone is 

not sufficient to constitute abandonment. See Shuggars v. Brake, 248 Md. 38, 46, 234 

A.2d 752, 758 (1967). Because the general rule requires that a right-of-way be used for 

the purpose for which it was granted, relevant to the determination of an intent to 

abandon is the nature of the grant: 

[I]f the scope of the easement were limited to railroad purposes, then an 

intent to abandon railroad use could indicate an intent to abandon the 

easement. However, the converse is also true. If the easement is not limited 

in its scope to railroad purposes, then, in order for there to be an 

abandonment, the party alleging abandonment must show more than an 

intent to abandon railroad service. 

Chevy Chase Land Co., 355 Md. at 157-58, 733 A.2d at 1080. 

In East Washington Railway Co., 244 Md. 287, 223 A.2d 599 (1966), our 

predecessors concluded that the right-of-way was subject to adverse possession due to 

abandonment. The conveyance from the private landowner to the railroad company 

granted plainly “an easement for railway purposes and use only.” East Washington Ry. 

Co., 244 Md. at 294, 223 A.2d at 603 (emphasis added). Any use other than for railroad 

purposes would be beyond the scope of the grant. The right-of-way “reverted to its 

original owners or their successors in title, because the railroad intentionally abandoned 

the present and future use of the contested strip for railroad purposes.” Id. The specific 

nature of this conveyance showed an intent to abandon once it was no longer being used 

for railroad purposes, which allowed the property to be subject to adverse possession. 
20 

In Chevy Chase Land Co., the “grantee railroad [wa]s obligated under statutory and 

common law to operate and use its assets for the furtherance of the general public welfare 

[and we concluded that] the conversion of a railway used for freight to a footpath [wa]s 

consistent and compatible with the prior railway use.” Chevy Chase Land Co., 355 Md. 

at 156, 733 A.2d at 1080. “Use of the right-of-way as a hiker/biker trail constitute[d] a 

change in instrumentality. . . from railcars to bikes and walking, [but] our highway cases 

make clear that changes in mode of use are presumed to be within the contemplation of 

the parties.” Chevy Chase Land Co., 355 Md. at 151, 733 A.2d at 1077. Furthermore, 

with no limitations placed in the deed, the transition from railway to hiker/biker trail was 

not beyond the scope of the interest granted via the right-of-way in Chevy Chase Land 

Co. 

The same is true here and is what makes the present case differ from East 

Washington. The right-of-way granted to the Railroad (and Montgomery County 

subsequently) by the 1890 Dunlop Deed was a general conveyance that placed no 

restriction on its use. Thus, the transition from railway to interim hiker/biker trail is a 

reasonable public use of the right-of-way and well within the County’s rights to establish. 

Under the Rails-to-Trails Act, this transition from rail travel to a footpath would not 

constitute abandonment.11

 If an abandonment analysis were undertaken, Bhatt would 

 

11 Railroads are subject to federal regulations because railroads operate in 

interstate commerce. Abandonment of railroad lines and service are also controlled by 

federal law. 49 U.S.C. § 10903. Under this specific federal provision, a rail carrier must 

file an application for abandonment and thus non-use would not be sufficient: 

 

(Continued...)
21 

have to present specific evidence on this question, which he has failed to do before any 

court in this case. 

The right-of-way in question was subject to the rails-to-trails program, as it was 

located on the Georgetown Branch/Capital Crescent Trail and subject to a Certificate of 

Interim Trail Use. As we concluded in Chevy Chase Land Co., “when a railroad takes 

actions pursuant to federal regulation that are wholly consistent with an intent to retain 

the property interest, in this case in order to pursue an interim trail use agreement, those 

actions alone cannot supply the decisive and unequivocal act evidencing an intent to 

abandon.” Chevy Chase Land Co., 355 Md. at 182, 733 A.2d at 1094. The conveyance 

accomplished by the 1890 Dunlop Deed to the Railroad did not restrict the use of the 

property to “railroad purposes.” Furthermore, it is apparent that the succeeding interim 

use as a hiker/biker trail is within the accepted definition of “public use” and within the 

scope of the grant to the Railroad and ultimately to the County. The inclusion of this 

portion of the Georgetown Branch in the Federal Rails-to-Trails “rail bank” is a further 

 

(...continued)

(1) A rail carrier providing transportation subject to the jurisdiction of the 

Board under this part who intends to--

(A) abandon any part of its railroad lines; or 

(B) discontinue the operation of all rail transportation over any part 

of its railroad lines, 

must file an application relating thereto with the Board. An abandonment or 

discontinuance may be carried out only as authorized under this chapter. 

49 U.S.C. § 10903(a). Because rail lines that are covered under a rails-to-trails 

agreement are subject to a future restoration of rail use, the right-of-way is not subject to 

a regulatory abandonment. 
22 

indication that there was no intent to abandon the right-of-way as a public use. 

Because no evidence was presented by Bhatt to show that the current use of the 

right-of-way by Montgomery County is unreasonable or that the Railroad or the County 

abandoned the right-of-way, no claim for adverse possession will lie. Accordingly, we 

shall reverse the judgment of the Circuit Court. Bhatt’s fence and shed encroached upon 

the right-of-way in violation of Montgomery County Code § 49-10(b).

12 The District 

Court got it right.

JUDGMENT OF THE CIRCUIT COURT FOR 

MONTGOMERY COUNTY REVERSED. CASE 

REMANDED TO THAT COURT WITH 

INSTRUCTIONS TO AFFIRM THE JUDGMENT OF 

THE DISTRICT COURT OF MARYLAND, SITTING IN 

MONTGOMERY COUNTY. COSTS IN THIS COURT 

AND THE CIRCUIT COURT TO BE PAID BY 

RESPONDENT. 

 

12 The County, in its Reply Brief filed with this Court, raised an argument not 

contained in its Petition for Writ of Certiorari nor raised or decided in the trial courts, to 

wit: the Circuit Court lacked jurisdiction to consider Bhatt’s adverse possession defense 

as it was preempted by federal law. See 49 U.S.C. § 10903. We do not recognize nor 

reach this jurisdictional argument because it was not raised and decided below, nor was it 

encompassed within our writ of certiorari. See Md. Rule 8-131(b)(1) (when reviewing a 

decision made by a circuit court acting in its appellate capacity, “the Court of Appeals 

ordinarily will consider only an issue that has been raised in the petition for certiorari or 

any cross-petition and that has been preserved for review by the Court of Appeals”). In 

any event, a failure to consider this argument is of no consequence, inasmuch as the 

County prevails on the merits.