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A map of the proposed Purple Line that would run from Bethesda to New Carrollton.

Md. Court of Appeals to decide who owns Purple Line right-of-way

ANNAPOLIS – Attorneys for Montgomery County and a Chevy Chase resident battled Thursday before Maryland’s high court over who owns a section of property that lies along the path intended for the proposed Purple Line light-rail system between Bethesda and New Carrollton.

Pressing Montgomery’s claim to the land, Robert J. Birenbaum said the property rests on a railroad right-of-way that the county bought for $10 million from the rail company in 1988 for use by hikers and bikers, a path now known as the Georgetown Branch/Capital Crescent Trail.

But Jeffrey C. Seaman, arguing for Ajay Bhatt, said the fence and shed the resident has on the property symbolize his legal claim to that land.

The fence has been up for the past 50 years without objection from the company or county until recently, Seaman told the Court of Appeals. He cited the legal doctrine of adverse possession, which transfers property ownership to the possessor if that possession was not interrupted by the current owner for at least 20 consecutive years.

The Court of Appeals, in choosing between the competing claims, has agreed to consider whether adverse possession can be asserted with regard to property that adjoins a railroad right-of-way.

Last year, Montgomery County Circuit Judge Gary E. Bair accepted Bhatt’s adverse-possession claim in throwing out the county’s $500 civil citation against him. The county had alleged that Bhatt’s fence and shed encroached and obstructed the right of way and sought a court order that he take them down.

Birenbaum, an associate Montgomery County attorney, said a railroad right-of-way is akin to a public highway, which cannot be converted to private ownership through adverse possession unless the government has abandoned the roadway through lack of use and upkeep. Such abandonment never occurred in Bhatt’s case, as the Metropolitan Southern Railroad and its successors used the right of way for nearly a century until 1985 and then sold it to the county, according to Birenbaum.

“Railroads hold their properties in trust for the public’s use,” he said. “Land held in public trust cannot be disposed of willy-nilly.”

But Judge Glenn T. Harrell Jr. interjected that the presence of the fence and shed “did not impede the physical operation of the railroad” and therefore appears distinct from the right-of-way.

“We do know that the trains kept running,” said Harrell, a retired judge who said he will continue to serve on the court until his recently appointed successor, Michele D. Hotten, takes her seat.

Birenbaum responded that a railroad right of way includes “immediately adjacent strips of land,” such as those where the fence and shed stand near Coquelin Terrace in Chevy Chase.

Seaman, picking up on Harrell’s comments, said the fence and shed were far enough from the right-of-way that their location interfered with no “actual public use” by the railroad and thus adverse possession can be asserted.

“Clearly, the railroad was able to operate,” said Seaman, counsel with Whiteford, Taylor & Preston LLP in Bethesda.

But Harrell, though having questioned the county’s position, also voiced concern about Seaman’s stance.

The judge wondered aloud whether someone could acquire through adverse possession land adjacent to major roads simply by placing a hut or other structure alongside the thoroughfare.

Seaman responded that the existence of a fence for 50 years, which was seen by and known to many without any interference from the railroad company or county, provides “a classic example of adverse possession” and sets Bhatt’s situation apart from a hypothetical roadside squatter.

The Chevy Chase right-of-way is intended to be used as part of the to-be-constructed 16-mile Purple Line, Montgomery County stated in papers filed with the high court.

Gov. Larry Hogan announced his support for the project in June but voiced reservations with the projected $2.45 billion construction cost, saying he would hope to slash that figure by more than $210 million.

Chief Judge Mary Ellen Barbera recused herself from hearing the case and was replaced by retired Judge Lawrence F. Rodowsky.

Barbera, who did not publicly disclose the reason for her recusal, is married to Bair, the circuit court judge.

The Court of Appeals is expected to render its decision by Aug. 31 in the case, Montgomery County, Md., v. Ajay Bhatt, No. 36, September Term 2015.