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Trail case in court

May 14, 2008
By DAN SCHNEIDER, DMG Writer
HOUGHTON — Reaching a resolution to the ownership dispute over the stretch of former Soo Line railroad grade from Houghton to Chassell will require patience.

Circuit Court Judge Garfield Hood reminded the courtroom of this fact Tuesday afternoon when he showed counsel for both sides the back of his nameplate before sustaining one of the many objections that came from the plaintiffs’ counsel during more than four hours of testimony. On the back of the nameplate, the side usually facing Hood during court proceedings, was written “patience.”

Tuesday’s hearing was on a permanent injunction requested by the Michigan Department of Transportation and the Michigan Department of Natural Resources in the case of Cox v. Leukuma et al. If granted, the injunction would require three property owners along the former railroad grade to remove barriers they built across the grade.

Nothing was decided Tuesday, however, as Hood requested final arguments in written form from both the defendants and the plaintiffs. Michigan Assistant Attorney General LuAnn Frost, representing MDOT, and Michigan Assistant Attorney General Harold Martin, representing the DNR, must provide their arguments within two weeks. Caroline Bridges, attorney for the defendants, must complete her written final argument by June 10, after which time Hood will render a decision upon the injunction request.

Bridges said the written arguments will address the substantive legal questions in the case.

“We were able to offer the documents and the testimony that was necessary and with the follow-up argument, the judge will make his decision,” Bridges said.

MDOT claims ownership of a rail an easement on the grade while the DNR claims ownership of the grade itself from Michigan Bell, which had previously purchased it from Soo Line.

Defendants Eric and Naomi Leukuma, Matt and Mary Kiilunen and Roswell and Ruth Miller erected barriers over the rail grade in question back in 2005.

On Jan. 3, 2007, Hood ruled in favor of the defendants, denying the DNR summary disposition and injunction in a suit over the same rail grade and barriers. The DNR was the sole plaintiff in that suit. In his order, Hood ruled the DNR did not hold fee title to the rail corridor.

In Cox v. Leukuma et al, the attorney general’s office accuses the defendants of creating a public nuisance with the barriers.

Tuesday, the plaintiffs argued the defendants’ ownership deeds do not grant them an interest in the rail grade.

Steve Douglas, a real estate agent with MDOT, testified that all three deeds in question exclude the rights of way.

Rick Ginter, who lives along the grade, testified the barriers obstruct public use of the grade, whether on foot, bicycle, horseback or snowmobile.

“It doesn’t matter what you’re doing, you can’t get through there,” Ginter said.

As one of three defense witnesses, all of whom were defendants, Matt Kiilunen testified snowmobiles and other ORVs caused problems on his property before he erected barriers.

“They went all over the blasted place,” he said.

Following the hearing, Martin said the Michigan Transportation Preservation Act of 1976 backs up the state agencies’ ownership claims.



Dan Schneider can be reached at dschneider@mininggazette.com

Article Photos

Gazette file photo
This file photo, taken last October, shows a fence built across the former Soo Line railroad grade at the eastern edge of Roswell and Ruth Miller’s property north of Chassell. A hearing on a request for an injunction to remove this and other fences along the trail was held Tuesday in Houghton County Circuit Court.

 
 

 

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