What Is the Legal Definition of a ''Right-Of-Way'' ?
In New Mexico v. United States Trust Co. of New York, 172 U.S. 171, 19 S. Ct. 128, 43 L. Ed. 407 (1898), the Supreme Court recognized that "right-of-way" may mean both the intangible right of passage over land or the tract of land itself.
The County concludes that "right-of-way" refers to the use of property in a railroad's possession, not to the property itself.
It posits that legislative intent in enacting Section 2402 of the County Code was to protect existing railroads. If a railroad does not own, operate or possess a railroad on specific property, then there is no prohibition against the use of eminent domain.