In the past two weeks, the Texas Supreme Court announced two decisions related to railroad crossings leading to private land.  Since I have dealt with private railroad crossing issues many times across the country over the past three decades, both cases interested me.  One case involved a fatal accident and, fortunately, the other did not.

Easement by Prescription

Typically, the railroad and the private landowner enter into a crossing agreement which permits the private landowner and its customers or vendors to cross the tracks.  Crossing agreements typically require the private landowner to maintain the crossing to specified standards and to maintain insurance.  In all of my legal work, we always had a crossing agreement.  But what if that is not the case?

Chisholm Trail Redi-Mix, LLC (“Chisholm”), through one of its founding owners, purchased a ten-acre tract of land in Johnson County, Texas, to build a cement mixing plant.  Access to the plant from State Highway 171 required crossing railroad tracks owned by Fort Worth & Western Railroad Company (“Western”). 

At the time of Chisholm’s purchase in 2016, there was already a single-lane gravel road crossing the tracks.  Aerial photos showed an unimproved road crossing the tracks dating back to 1941.  At least one prior landowner had a crossing agreement, but it was not transferable following the 1969 sale of the property and had long since expired.

Before Chisholm purchased the tract, Western provided Chisholm with what was probably a typical crossing agreement.  For reasons not disclosed in the opinion, Chisholm did not enter into that crossing agreement. 

When Chisholm sought a special use permit with local authorities, Western objected.  Western also objected to a TCEQ air permit application sought by Chisholm.  Ultimately, Western filed a lawsuit to stop Chisholm from using the crossing.  A jury decided Chisholm had the right to use the crossing and Western appealed.

The dispute reached the Texas Supreme Court in 2022 (Case No. 22-0424), and on February 16, 2024, that Court upheld Chisholm’s right to use the crossing under the legal theory of prescriptive easement.  “A person can acquire a prescriptive easement if he uses someone else’s land in a manner that is adverse, open and notorious, continuous, and exclusive for  ten years.”  The prior history of  the property, before the purchase by Chisholm, established the prescriptive easement.  From 1969 to 2016, owners of the ten-acre tract had been crossing the railroad without permission. 

Western acquired the railroad property in 2005, it began objecting to the crossing but it never took steps to stop the crossing by blocking access to the crossing.  By the time Chisholm purchased the property in 2016, there was already a prescriptive easement, and that easement ran with the land – from owner to owner.

Fatality at a Rural Railroad Crossing

The second railroad  crossing case addressed by the Texas Supreme Court this month, Case No. 22-0431, addressed one of 19 fatalities that occurred in 2015 at a railroad crossing – this one involving a private road on the Ezra Alderman Ranch that crossed a Union Pacific track on a private road well within a tract owned by Ezra Alderman Ranches, Inc., between San Antonio and Laredo. 

The accident occurred when Prado, on his first day of work at an oil drilling rig on the ranch property, was leaving work at sunset.  The caliche road he travelled on crossed Union Pacific tracks, but with some limited visibility as far as oncoming trains were concerned.  To address that issue, the railroad had installed a standard red stop sign above a white railroad crossing sign.  Anyone who stopped at the stop sign would have no visibility issues in seeing a train coming.  Of note, the Texas Supreme Court opinion begins with the following sentence, “It seems reasonable to think the law should presume that drivers will stop at a stop sign, at least absent some kind of emergency situation.  And landowners, it seems, should be able to expect that drivers will obey a stop sign they post on their private property.”  Those two sentences explain the entire 21-page opinion to follow.

As you may have guessed, Mr. Prado did not stop.  It was estimated that his pickup truck passed through the stop sign at nine miles per hour, three seconds before being struck by a train.

Were the stop sign and railroad crossing signage adequate? 

Railroads “must provide at least one warning sign that is adequate to ‘give notice of the proximity of the railroad and warn persons of the necessity of looking out’” for a train.  “For ‘an  ordinary rural railroad crossing,’ a crossbuck sign will  typically satisfy that duty.”

However, extra precautions are required if the crossing is “extra hazardous.”  Extraordinary warnings include lights or bells to warn persons approaching the crossing, warnings not utilized in this case.  To be “extra hazardous,” the legal standard is that “a prudent person exercising ordinary care cannot safely use the crossing unless extraordinary warnings or protections are provided.”  “Factors that may be relevant include visual obstructions like trees and buildings, the volume of train and vehicular traffic, the angle of the intersection, the grade and  curvature of the road leading to the crossing, and any history of similar accidents at the crossing.” 

The Prado family presented evidence that the crossing was extra hazardous.  An accident at the crossing (with no injuries) had occurred two weeks earlier.  Two accidents had occurred three years earlier, one of which was a fatality.  Another accident (with no injuries) had occurred almost twenty years earlier.

The Prado’s evidence was not compelling in light of Texas’ statutes which require a driver to stop at a stop sign, whether safety requires it or not, unless directed to proceed by a police officer.  The stop sign, thus, meets the requirement of an extraordinary warning.  Neither the railroad nor the ranch were found liable for the death of Mr. Prado.

My Take: If access to your business involves crossing a railroad track, in spite of the success that Chisholm Trail Redi-Mix enjoyed in its case, I do not recommend going without a crossing agreement.  The stakes are very high if there is an accident.  More importantly, you never want to even have an accident.  Partnering with the railroad in the form of a crossing agreement makes good business sense.  Your interests are very aligned, and the railroad, insofar as it is looking out for itself, is also largely looking out for you.  On top of that, in Texas, it would be a good idea to add a standard red stop sign to whatever signage you currently utilize at your private property railroad crossings.  I cannot say that this will help in any other jurisdiction, but it certainly cannot hurt.

May you find joy in what you do and who you are with.