A 90+ acre tract of land has CSX railroad on it.

The property owner in this rural area hunts on the property. In fact the back half of the tract of land is bounded on three sides by the rail main line and two secondary lines. There is literally no way other than helicopter for the man to access this portion of his land without crossing a rail right of way. (130 ft) enter image description here

Note the triangle shaped portion surrounded by tracks

Recently while hunting he crossed the Rail road tracks and right of way to hunt on the back half of his land.

The game warden observed him walking across the tracks and cited him for trespassing on railroad property.

According to the South Carolina law he is charged with breaking no one can be on the rail right of way except those with authority like rail workers, fire and emergency personnel and law enforcement.

CSX rail police came to the court proceeding to vouch that this was a case of trespassing.
Can a law that effectively bars a property owner from access to their property be enforced or does the constitution protect the property owner’s rights and thus make them exempt from such a state law? Edit: on the interactive tax map touching within the orange lines marking rr right of way brings up “no information available” touching elsewhere brings up the owners name info and market value.

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    I presume the railway was in place when the man bought the property? The deed to the land may document the terms under which the railroad was allowed to build the line, and what rights the property owner may have given up to them. Commented Sep 10, 2021 at 1:52
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    My question is about the deed, not the tract map. Even if it's the same tract, the railroad likely has an easement to run their tracks across the land, which the deed would document. And that easement might include a provision that the the landowner shall not cross the tracks for any reason (or, perhaps, that if they want to be able to do so, they must pay to have a controlled crossing built). Yes, it would reduce the value of the property, but the owner at the time may have been compensated, and after that it's assumed to be "priced in". Commented Sep 10, 2021 at 13:43
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    I'm not aware that there is a constitutional right to own property (at least not in the US constitution, I haven't checked South Carolina's). It seems to me the relevant constitutional provision is the Takings Clause. Making part of the land inaccessible is probably a "taking" and so the landowner at the time would have had to be compensated. But for all we know, they were compensated. At that point, when the current owner bought the land, he should have known that part of it was inaccessible, and decided accordingly how much to pay for it. Commented Sep 10, 2021 at 14:14
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    At a meta level, it seems unlikely that the legislature would have wanted for the landowner to be excepted from the prohibition. After all, the property owner crossing the tracks, without authorization from the railroad, presents just as much of a safety hazard as any other person. So it's reasonable to guess that the legislature would have drafted the law to also ban the property owner from being on the tracks. They (or their legal staff) most likely knew the precedent for the interpretation of the word "trespass" better than any of us. Commented Sep 10, 2021 at 18:15
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    Of course, if it were unconstitutional to prohibit the property owner from crossing the tracks, that would be another story. But I see no reason to think so. Commented Sep 10, 2021 at 18:16

2 Answers 2


It would seem that the law involved is probably Section 58-17-4096 of the South Carolina Code of Laws, Title 58. This is part of the General Railroad Law of SC (GRL), and apparently was last revised in 1996. Section 58-17-4096 reads, in full:

(A) It is unlawful, without proper authority, for a person to trespass upon railroad tracks.

(B) A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days.

Note that the section does not specifically define "proper authority" nor "trespass" (nor do the definition sections at the start of the GRL), so those terms should have their ordinary meanings. It might be argued that the landowner has "proper authority".

It is interstice to contrast this with the previous section, SC Code § 58-17-4095 (2012) which gives a rather detailed list of who is authorized to "park or operate a vehicle on a railroad right-of-way". Persons authorized are:

  • an employee of the railroad ... in the performance of his duties
  • [one who] has authority from the railroad
  • [one who] is using a public or private roadway which crosses over the railroad ...
  • [one who] is acting in an official capacity with the military, police force, a fire fighting organization, or some similar public authority ... which crosses over the railroad ...
  • [one who] is an employee of a public utility or telecommunications carrier, or of the forestry industry ...

The question asks:

Can a law that effectively bars a property owner from access to their property be enforced or does the constitution protect the property owner’s rights and thus make them exempt from such a state law?

There is no such absolute right of access by the owner specified in the US Federal Constitution. As the comments by Nate Eldredge suggest, the Takings Clause of the Fifth Amendment might be relevant, but that would have (or should have) been applied when the railroad lines were put in, and if proper compensation was paid at that tiem to the then landowner, future ownership would include the restrictions then imposed. Any easement should be recorded on the actual deed to the property, but a tract map would not normally show it.

Moreover, it is possible that the railroad was put in before the fourteenth amendment made the takings clause applicable to the states, or before this incorporation was recognized in Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897). Even so, an easement might have been obtained by private agreement between the railroad and the owner of the land at that time.

In the "Interactive Constitution" article "The Fifth Amendment Takings Clause" by Richard A. Epstein and Eduardo M. Peñalver (both noted professors of law) it is said that:

... The Clause also applies, not only to the confiscation of all existing interests in any individual piece of property, but to the confiscation of certain lesser interests in property. Under Anglo-American law, these would include recognized interests like easements (such as rights of way), leases, mortgages, life estates, and remainders.


... Any time some private party could seek a court order stopping another private party from engaging in harmful activities, the government can impose the same limitations through fines and court orders without a duty to compensate.

A law or regulation authorized by law may bar access by a landowner to a part of a property in proper cases. For example if the land is environmentally sensitive, or if there is a dangerous condition, such as old ordnance on a former proving ground or battlefield. Such a law would probably be a partial taking, and require appropriate compensation, depending on the exact circumstances

The answer by Greendrake which says:

the only theoretically possible case of trespassing here is that of trespass to chattels, but that is a tort, not a crime. There can be no charges, only claims.

is incorrect because of Section 58-17-4096, which specifically makes such trespass a misdemeanor punishable by fine or imprisonment.

However, in Faulkenberry v. Norfolk Southern(Opinion No. 25454, Opinion Filed April 29, 2002) the South Carolina Supreme Court found that a railroad claiming under an 1845 charter which authorized it to purchase land, and force such purchases, had acquired only an easement, not a title in fee simple.

The opinion by Justice Waller refers to and quotes the SC 1845 Act No. 2953 which granted powers of acquisition to the railroad, and mentions other similar acts of the same era granting such powers to other railroads.

The opinion also cites the SC 1868 Act No. 43, 7, which explicitly limits such railroad tenures.

The Justice wrote:

The circuit court, pursuant to numerous cases of this Court, held Railroad acquired only an easement to use the tracks, rather than a fee simple determinable, and that, in any event, Faulkenberry was entitled to an easement by necessity.


In Ragsdale v. Southern Ry. Co., 60 S.C. 381, 38 S.E. 609 (1901), the Court construed a Charter to the Spartanburg and Union Railroad which had provisions identical to those of sections 9, 10 and 11 above. The Court noted that, under sections 9 and 10, the Legislature had specifically provided that land taken by and paid for by the railroad would vest in fee simple. However, the Court noted that no such words were used in section 11, which provided only that the company shall have "good right and title. . . so long as the same may be used only for the purpose of said road." The Ragsdale Court, after citing Justice Wardlaw's dissent in Lewis, concluded:

[t]he legislature wisely made a distinction in the tenure by which the railroad company held the land when it was under one or the other of said sections. Having reached the conclusion that the rights of the parties are different under the foregoing sections, . . . [o]ur interpretation of the foregoing sections is that the railroad company acquired only a right of way over the land described in the complaint.


We adhere to the wealth of authority in this state and hold the 1845 Charter created only an easement in Railroad, such that Faulkenberry is entitled to use the disputed crossing. We note, however, that although Faulkenberry may cross the railroad tracks, he may not do anything which would unreasonably interfere with Railroad's use of its easement. Marion County Lumber Co. v. Tilghman Lumber Co., 75 S.C. 220, 55 S.E. 337 (1906) (owner of the dominant estate cannot materially interfere with use and enjoyment of servient estate's easement; owners must be held during continuance of easement to have abandoned every use of the land except such as might be made consistent with the reasonable enjoyment of the easement). See also Brown v. Gaskins, 284 S.C. 30, 33, 324 S.E.2d 639, 640 (Ct.App.1984). (

A footnote to the opinion mentions that:

The circuit court ruled that, in any event, Faulkenberry was entitled to an easement by necessity to cross the railroad tracks. In light of our holding, we need not address this alternate ruling.

Note that in the Faulkenberry case there was apparently a road crossing the tracks, although not an authorized crossing.

The doctrine of an easement by necessity might apply in the case described in the question. Detailed legal advice would be needed to determine this, and quite probably a court case.

  • This is in South Carolina but the law they read in court is very similar.
    – Kris
    Commented Sep 10, 2021 at 17:03
  • @Kris Thank you, my error, google searches found the NC law. I will try to find the matching SC law. Commented Sep 10, 2021 at 17:22
  • "It might be argued that the landowner has "proper authority"." — that's exactly the point of my answer. Of course it will be misdemeanor or whatever degree of a crime, but not for the owner of the land who just can't be a trespasser by definition.
    – Greendrake
    Commented Sep 10, 2021 at 17:39
  • @Greendrake I do not think that is so automatically clear as you suggest, an easement may bar any access by the owner of the underlying property. If the law section had been as specific as Section 58-17-4095, which clearly sets out and limits exactly who had "proper authority", the property owner would have had no valid argument. Had there been another way to access the triangle, no "easement by necessity" would be likely to exist. Commented Sep 10, 2021 at 17:47
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    @Kris The law I cited and quoted originally is actually from SOUTH Carolina. My statement of "NC" was an error. I suspect it is in fact the proper law here. Commented Sep 10, 2021 at 17:52

There is no valid case of trespassing. The hunter-owner should get a lawyer and tell the bullies where to get off.

The key is this:

The tract of land is a single tract shown on tax maps with a 130’ rail right of way indicated. The rr right of way does not show as a separate tract of land

— which means there is no land to trespass: the whole land belongs to the hunter, and the railway must have had an easement attached to the land to use it.

That said, the only theoretically possible case of trespassing here is that of trespass to chattels, but that is a tort, not a crime. There can be no charges, only claims.

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    This article suggests that an easement can be the property of the dominant estate, and that for the servient landowner to interfere with it can be trespassing, even though it's "on his own land". In that case property was actually destroyed, but it suggests to me that we can't throw trespassing out the window without knowing more about the easement. Commented Sep 10, 2021 at 13:50
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    Oh. I guess I just don't see how that adds to the answer, then. It is likewise theoretically possible that D assaulted the game warden, but it seems like it's most useful to limit our answers to facts that we have some reason to believe actually exist.
    – bdb484
    Commented Sep 10, 2021 at 17:41
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    Further confirmation: findlaw.com/realestate/land-use-laws/easement-basics.html: "Interference with an easement is a form of trespass". Normally this would be something like blocking or digging up the road which your neighbor has a right to use, but in the case of a railroad, it could be argued that being on the tracks at any time, even briefly, interferes with the easement (by creating a safety hazard). Commented Sep 10, 2021 at 18:11
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    So I really can't get behind your absolute assertion that "hunter owns the land, therefore by very definition he cannot be trespassing". Commented Sep 10, 2021 at 18:12
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    @NateEldredge From your link: "An easement doesn't allow the easement holder ... to exclude others from the land unless they interfere with the easement holder's use. In contrast, the property owner may continue to use the easement and may exclude everyone except the easement holder from the land.". I do not think that occasional cautious crossing the rail for lawful purpose is anywhere near the threshold for interference that the easement holder would have valid concerns about vs mere desire to bully the owner.
    – Greendrake
    Commented Sep 11, 2021 at 0:11

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