Rail Roads

Rail roads are a public means of conveyance of passengers and goods by way of wheeled vehicles running on rail tracks.  In the U.S., a railroad is a public utility deriving its franchise from a state.  A railroad constructed and operated in a state is a public highway[i].

Generally, as a public utility, a rail road corporation agrees to submit to all burdens, conditions, and regulations imposed by the state with reference to its tracks and their intersections with highways necessary to promote or secure the safety of the traveling public.  Roads and bridges are not merely for local use but are for the use and accommodation of all citizens of the state[ii].

The general public has the same interest in the preservation and maintenance of railroads as it has in the maintenance of other highways.  The title to a part of a railroad’s right of way, while it is being operated as a common carrier, cannot be divested by adverse possession[iii].

The law of railroads is generally of a federal character[iv].  Pursuant to 49 USCS § 22301, a railroad means any form of non highway ground transportation that runs on rails or electromagnetic guide ways, including:

(i) commuter or other short-haul railroad passenger service in a metropolitan or suburban area and commuter railroad service that was operated by the Consolidated Rail Corporation on January 1, 1979; and

(ii) high speed ground transportation systems that connect metropolitan areas, without regard to whether those systems use new technologies not associated with traditional railroads.

However, a railroad does not include rapid transit operations in an urban area not connected to the general railroad system of transportation.

The right of the public to use the road’s facilities and to demand service of it determines the character of railroad as a common carrier[v].

The power to determine a railroad corporation’s duties and enforcing their performance related to interstate commerce is vested with the Congress and federal government.  The following are examples of federal legislations that subject the U.S. railroad to federal regulation:  the Federal Employer’s Liability Act, the Railway Labor Act, the Railroad Retirement Act, and the Railroad Unemployment Insurance Act.  This Federal legislation is intended to establish and maintain an adequate railroad system for the people of the U.S[vi].

However, in many jurisdictions, public utility services of a railroad corporation are determined by state legislations.  A state adopts more stringent regulation relating to railroad safety than that provided by federal regulation if the state regulation meets certain conditions.  A state adopts or continues in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation, or the Secretary of Homeland Security prescribes a regulation or issues an order covering the subject matter of the state requirement.  A state adopts or continues in force an additional or more stringent law, regulation, or order related to railroad safety or security when:

  • it is necessary to eliminate or reduce an essentially local safety or security hazard;
  • it is not incompatible with a law, regulation, or order of the U.S. government; and
  • it does not unreasonably burden interstate commerce[vii].


In case of conflict between federal and state laws, the federal law prevails.  The U.S. Constitution provides that the Constitution and the laws of the U.S. are the supreme law of the land[viii].  A state law regulating the hours and overtime of railroad employees is preempted by a federal law[ix].

[i] Ne. Const. Art. XI, § 4.

[ii] People ex rel. Franklin County v. Williamson County, 286 Ill. 44, 49 (Ill. 1918).

[iii] McLucas v. St. Joseph & G. I. R. Co., 67 Neb. 603 (Neb. 1903).

[iv] 49 USCS § 22301.

[v] Union Lime Co. v. Chicago & N. R. Co., 233 U.S. 211, 217 (U.S. 1914).

[vi] Interstate Commerce Com. v. Railway Labor Executives Asso., 315 U.S. 373, 374 (U.S. 1942).

[vii] 49 USCS § 20106.

[viii] USCS Const. Art. VI, Cl 2.

[ix] Erie R. Co. v. New York, 233 U.S. 671, 681 (U.S. 1914).

Inside Rail Roads