APPENDIX

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Policy On Private Crossings, West Virginia Example

May 2006

TO: Division Directors District Engineers

FROM: Marvin Murphy

SUBJECT: Adding or Improving Highway Rail-Grade Crossings

The Division of Highways is frequently faced with situations where it is necessary or desirable to add one or more highway-rail at-grade crossings to the State Highway System. The addition of these crossings can take several forms. It is the intent of this memorandum to distinguish between the situations which may arise and to prescribe appropriate actions to be taken in each.

The decision to construct a new highway-rail crossing, or to redesignate an existing private crossing as public, must not be taken lightly. Careful consideration must be given to balancing public convenience; public necessity; potential adverse effects on both highway and railroad operations; and safety.

Adoption or redesignation of a crossing may have significant consequences. There are differences between the responsibilities of the Division of Highways and of the railroad depending on whether a highway-railroad crossing is public or private, and on the crossing’s antecedents. For instance, a private crossing agreement ordinarily requires an annual fee for maintenance and insurance; has a cancellation clause; and specifies that the other party to the agreement will be financially responsible for any physical improvements or additional traffic control devices which the railroad may determine to be necessary.

A private crossing:

•    Represents a relationship between the railroad company and the party or parties served by the crossing.

•    May exist due to various circumstances, such as a deed, agreement, or a prescriptive right.

•    Carries no responsibility for the railroad or for the division of highways to install any traffic control devices.

•    Does not require the engineer to sound a whistle or bell.

•    May be blocked for any period of time necessary to allow trains to be held, to switch, or to pass.

•    Needs to be maintained only to the standard required for the user or users to be able to cross.

A public crossing, on the other hand, imposes certain duties on the division of highways and on the railroad:

•     The division of highways must install advance warning signs, pavement markings (if appropriate), and any other traffic control devices which may be recommended after an engineering study.

•     The division of highways is responsible for the routine maintenance of the crossing approaches beyond the outer ends of the crossties, even though the highway is within the railroad right of way (If the track elevation or the roadway at the crossing is changed, the party making the change is responsible for providing runoffs or other corrective measures).

•     The division of highways is responsible for 100 percent of the engineering and construction costs of active traffic control devices (flashing lights, or flashing lights and gates) if they are needed at the crossing.

•     Once active traffic control devices have been installed, the railroad assumes ownership of them and is responsible for all continuing power and maintenance costs in perpetuity.

•     If active traffic control devices are not present, the railroad must install “. . . Signboards or notices . . . Of the design and construction and . . . Located in the manner required or approved by the state road commission” (West Virginia code, §31-2-9).

•     The railroad engineer must sound the whistle when approaching the crossing (West Virginia code, §31-2-8 and 49 cfr §222.21).

•     The crossing may not be blocked by a standing train, or by a train engaged in switching, loading, or unloading operations for a period of more than 10 minutes (West Virginia code, §31-2a-2).

•     The railroad has an absolute and non-delegable duty to keep and maintain the crossing surface in a reasonably safe condition (West Virginia code, §17-4-8 and §17-16-8).

•     Additional liability may accrue to the railroad in case of an accident.

The responsible Division of Highways organization should ascertain the speed, frequency, and nature of train operations at and near the site at which a crossing is proposed for construction or redesignation. Crossings should not be added or redesignated where highway traffic would be impeded by frequent train movements or by stopped or slow-moving trains. Particular locations to be avoided include areas within or in the vicinity of rail yards and terminals; industrial trackage or switching yards; tracks used for meeting or passing trains; areas where “helper” locomotives are used or are added to or removed from trains; and areas where trains are held short of yards, terminals, railroad junctions, or to avoid blocking other public crossings.

Before any highway-railroad crossing is added to the State Highway System, the responsible organization must contact the Railroad and Utilities Section of Engineering Division to confirm the public or private status of the crossing and to permit the initiation of an appropriate railroad agreement, if required.

The following paragraphs discuss the most common situations:

1.    A public highway-railroad crossing is being added as a result of a construction or reconstruction project by the Division of Highways: The decision to cross any rail line with a new or improved public crossing at grade should not be taken lightly. The immediate and long-term costs of such a decision can be very high. There will be immediate dollar costs for right of way and construction and for the railroad’s prospective costs for the operation and maintenance costs of the new or upgraded traffic control devices and of the crossing itself. There will be daily road user costs for train delays, and as vehicles slow and speed up in traversing the crossing. There will be larger, periodic road user costs as the crossing must be closed or restricted for railroad track and crossing surface maintenance.

As a condition of approving the installation of a new public crossing, the affected railroad may request that two or more public crossings be closed. The roadway system throughout the immediate area should be reviewed during project development. Quite often, traffic on some number of roadways in relative close proximity to the new crossing can be diverted to it or to other points of access without sacrificing convenience. These common points of access can then be upgraded to improve traffic operations and to reduce the number of major intersections or other potential points of conflict.

2.    A public highway-railroad crossing is being added under or in cooperation with a project for an industrial access road, school access road, or similar improvement: Unlike the case described above, such a crossing will not ordinarily carry through traffic. An at-grade highway-rail crossing may be the only feasible method of access to a site due to topography or other constraints; or, in the case of an industrial park, rail service may be necessary to the viability of the park or to one or more tenants.

Many of the circumstances cited above will apply. There will be immediate dollar costs for right of way and construction and for the railroad’s prospective costs for the operation and maintenance costs of the traffic control devices and of the crossing itself. There will be daily road user costs for train delays, and as vehicles slow and speed up in traversing the crossing. There will be larger, periodic road user costs as the crossing must be closed or restricted for railroad track and crossing surface maintenance. As a condition of approving a new public crossing, the affected railroad may request that two or more public crossings be closed as a condition of approving the installation of the new crossing.

3.    A road that crosses a railroad via an existing public highway-railroad crossing is adopted into the State Highway System:

This situation most commonly occurs when an existing public road that has not previously been adopted by the Division of Highways is added to the State Highway System. The addition may be for purposes of maintenance, or may be necessary to permit the upgrading of the crossing and approaches as part of a project or to facilitate a safety improvement. In this instance, many of the responsibilities and burdens listed above have already fallen upon the railroad.

4.    A road that crosses a railroad via an existing private highway-railroad grade crossing is adopted into the State Highway System: As noted earlier, a private highway-railroad grade crossing represents a relationship between the railroad company and the party or parties served by the crossing.

Before the road and crossing are adopted, it is essential that the type of right of way occupied by the railroad (title in fee, title in fee for rail purposes, or easement) and the antecedents of the crossing (deed, agreement, prescriptive right, etc.) be known. This will permit a more complete assessment of the legal status of the crossing and will assist in negotiating and preparing an appropriate agreement.

When adopting a road into the State Highway System, the railroad company must be accorded the same status as the other property owners. Also, the adoption of the crossing may result in significant financial, operational, and liability burdens on the railroad and on the Division of Highways. The company may resist the adoption of the crossing; may request that they be compensated for the right of way, plus damages and prospective costs; or, in rare cases, may request that the Division of Highways assume the responsibilities and costs included under an existing private crossing agreement.

Railroads have not always been considered in past road redesignations or adoptions. This omission can make our day-to-day dealings with the railroads regarding other mutual concerns more difficult, and may expose the railroad and the Division of Highways to increased liability in case of an accident.

In summary, it is necessary to exercise a high standard of care when considering a railroad crossing for adoption into the State Highway System.