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Published: Thursday, 5/25/2006

U.S. appeals court won't halt rec trail

MILAN, Ohio - A group of Erie County landowners fighting construction of a recreational trail along an abandoned rail and canal path have lost another court battle in their 13-year-old struggle to stop the project.

A U.S. appellate court has declined to overturn a U.S. District Court ruling against Mick and Lisa Coles.

The Huron River Greenway has generated 15 court cases, most of which were filed in Erie County Common Pleas Court.

The Coles and other landowners along the trail say the Erie MetroPark system has illegally claimed ownership of the strip of land that once was a railroad bed that followed part of the old Milan Canal.

A three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati on Monday upheld a decision in U.S. District Court in Toledo, which said the case did not belong in a federal court.

Mr. Coles yesterday called the decision a partial victory, saying it affirmed the right to seek a "mandamus" lawsuit, which asks a court to order a government agency to follow the law.

Parks director Jon Granville said the opponents of the trail "are in classic denial" over rejections in court. "The federal matter grew out of an attempt by this small group of abutting landowners to reverse the landmark state cases in this matter," Mr. Granville said. "They wanted another bite of this apple."

The federal appeals court said the Coleses "must first seek compensation for the taking through state measures. Because plaintiffs in the instant action have not done this, plaintiffs' case is not yet ripe for review."

An Erie County Common Pleas Court ruling in September, 2002, said the park had a valid leasehold interest in the property, rejecting the claims to the land by the Coleses. A year later, the Coleses took their claim to federal court in Toledo, saying they were the rightful owners.

The park district has continued construction on the trail, completing nearly half of the project.

The old Milan Canal extended nearly 6 1/2 miles from Milan north to the mouth of the Huron River. Three miles of the path are open, extending from near Huron toward DuPont Marsh State Nature Preserve.

Mr. Granville said there is no date set for completion, which is dependent upon finances.

The trail could have been finished by now with the money spent on litigation, he said.

"We have looked at this over the years and said, 'What a waste,'‚óŹ" the park director said. "We could have paved this thing in gold."

The Huron River Greenway follows a railroad built in the 1870s over the towpath of the Milan Canal, a waterway rich in historic significance as a grain and ore-shipping channel.

The group has claimed Wheeling & Lake Erie Railway Co. had only leased the corridor, and it reverted to the original landowner when the railroad removed its tracks.

The origins of the dispute can be traced to 1881, when Milan Canal Co. leased its towpath to the Wheeling and Lake Erie Railroad for $50 a year. The agreement stipulated that the railroad's rights would revert to the canal once the lease went unpaid for six months.

When the track was abandoned, trail advocates proposed the corridor be converted into a pathway for recreational use.

Citizens for the Protection of Property Rights claims the railroad forfeited its use of the land in 1989 when it was formally abandoned. The tracks were removed three years later.



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