Legal Memorandum: Creation of a Hike-and-bike Trail in NE

Issue: Under Nebraska law, may a municipality change a public street to a hike-and-bike trail?

There is little precedent, in Nebraska or in other states, to guide a determination of whether a municipality may create a hike-and-bike trail on a street.  The majority of the cases concern the transformation of a railway bed into a recreational trail.  For example, in Boyles v. Missouri Friends of Wabash Trace Nature Trail, Inc., 981 S.W.2d 644, 647 (Mo. Ct. App. 1998),*FN1 the trial court granted summary judgment in favor of a group of landowners, whose property abutted an abandoned railroad which was being turned into a recreational trail, holding that they were owners in fee simple absolute of the land and were entitled to possession of the section of the corridor which adjoined their lands.

On appeal, the Boyles court determined that when the railroad company originally took a right-of-way by condemnation over the land, it obtained only an easement, not the fee, and that when it abandoned railroad operations the original owners or their grantees held the property free from the easement.  981 S.W.2d at 649.  The defendant, however, argued that the easement was not abandoned because it planned to continue to use the railroad corridor for “transportation” as a hike- and-bike trail, which was consistent with the use for which the easement was initially taken.  Id.  The Boyles court disagreed, noting that the easement was granted for “railroad purposes” to which hiking and biking were clearly distinguishable.  Id. at 649-50.  The court, in emphasizing this distinction, sought out the dictionary […]