WAUKESHA — A
Waukesha County Circuit Court judge is considering arguments in
a lawsuit brought by a firm wishing to use part of a railroad
right-of-way in Pewaukee for parking, just as a prior business
there reportedly did for decades.
a partner in the Pewaukee Land Co., sought approval for an
open-air rooftop restaurant on the site of a former Denny’s
Service and BP station at 2221 W. Wisconsin Ave., but was told
by the Plan Commission in 2013 the site needed at least 34
parking spaces, far more than were available.
Pewaukee Land Co. last fall filed a lawsuit against the Soo Line
Railroad Co., which operates the Canadian Pacific line and owns
the railroad and the right-of-way abutting the gas station site.
The suit seeks “adverse possession” of part of the right-of-way,
arguing the service station “continually occupied the subject
property for more than 40 years.” The suit maintains such
possession has been “visible, open and notorious.”
Pewaukee Land Company is attempting to adversely possess the
property. It has been a parking lot for a number of decades,”
said Matthew Fernholz, an attorney for the plaintiffs, on
file includes an affidavit from former Pewaukee Police Chief Ed
Baumann, who said during his nearly 30 years as chief, he
received various calls from the railroad about people on the
tracks but “not once” for a complaint of people parking at the
attorneys for the railroad responded with a motion for summary
judgment — a move to decide a case when no material facts are
disputed. In a memo accompanying the motion, railroad attorney
Matthew Seltzer said the Interstate Commerce Commission
Termination Act pre-empted any such use of the right-ofway.
ICCTA’s per se preemption framework, there are only two material
facts required for this Court to resolve CP’s motion for summary
judgment. Neither of these two facts is, or can be, disputed by
plaintiff. First, the land in question is a CP railroad
right-of-way. Plaintiff cannot deny, and in fact has admitted in
its Complaint, this fact,” he wrote.
Plaintiff cannot deny, and indeed its Complaint evidences, that
it seeks to take control of CP’s right-of-way through adverse
possession and a prescriptive easement. Because there are no
genuine issues as to either of these material facts, CP is
entitled to summary judgment on both of Plaintiff’s claims on
the basis of federal preemption.”
could not be reached for comment Friday.
Meyer, general manager of capital planning for the CP, said in
another affidavit the rightof- way is “essential” to railroad
operations on the line, which is its primary route from Chicago
to Vancouver, carrying 18 to 22 freight trains and least two
passenger trains a day. The right-of-way is needed to provide a
safety buffer, as well as space for drainage and maintenance and
service on the tracks and space for future expansion, he said.
hearing arguments this week, Judge Maria Lazar is taking the
matter under advisement, with no timeline set for her ruling.
Should the case not be dismissed, it is set for a March pretrial