State trail plan crosses up Walpole farmer

Going from his house or barn to his fields, Walpole farmer Vincent Malnati can still “get there from here,” but the going will likely be both less convenient and more expensive when the abandoned rail line that cuts through his 173-acre farm becomes a state-designated recreational trail.

“Right now I have no legal right of way,” Malnati said about the route he has been taking from his barn to his fields in the years since he and his wife Carol purchased the farm in 1988. The rail line he crosses several times a day was abandoned in the early 1970s, but the state has since taken ownership of the former right of way for the Cheshire branch of the Boston and Maine Railroad.

The Department of Resources and Economic Development plans to include the property in its Rails-to-Trails program, opening it to hiking, biking, cross-country skiing, snowmobiling and winterized ATV use. Malnati leaves a portion of the farm open to snowmobilers now, but he worries about the impact a designated public trail will have on his daily farm operations.

“Number one is the bottles and trash I think the added traffic will bring. We do have cows pastured along the railroad tracks, and I’m concerned about them ingesting metal or broken glass,” he said.

Then there are the traffic problems he anticipates.

“The bulk of our tillable land is on the other side of the tracks,” he said, adding that work on the farm will be slowed if he has to get on and off his tractor “five, six or 10 times a day” to open and close gates that may be needed to keep the recreational traffic on the trail and off the fields. “We’re a family operation. We don’t hire much extra help,” he said. “The days are long and there’s not much spare time.”

To get a permit to cross the trail, the Malnatis will have to pay an initial $350 fee for the first year and $50 a year thereafter, according to the Division of Rails and Transit in the state Department of Transportation. They also will be required to carry $1 million in liability insurance.

Along with the added expense and inconvenience, Malnati views the planned trail as an invasion of his property rights. “You ought to be able to do with your own property as you see fit,” he said.

But while the Malnatis may own the rest of the farm, from Route 12 down to the Connecticut River, a 1981 statute declared that all railroad rights of way held by the state are state property, with all reversionary rights “hereby declared extinguished.” The statute requires public notice of all properties acquired and provided a process through which landowners could appeal for compensation.

“This turns the process of eminent domain on its head,” said Keene lawyer Mary Lou Caffrey, who represented the Malnatis in their challenge of the statute. “Normally the state comes to you to make you an offer. Under this statute, the burden is on the landowner to notice a little legal notification in the paper and then file a lawsuit against the state for damages.”

A Cheshire County Superior Court ruling that the statute violated the Malnatis’ due process and equal protection rights was overturned on appeal by the state Supreme Court. The high court held the Malnatis lacked standing to challenge the notification provision, since they had received notice of the taking through newspaper ads. The lack of a pre-taking hearing was not an issue, the court declared, because the statute, in declaring an entire class of property taken, did not require the state to show a need for taking the corridor on the Malnati farm.

“It seems pretty crazy to me,” said state Agriculture Commissioner Steve Taylor. “I think what it shows, really, is that deeds and provisions of deeds are vulnerable to being set aside by legislative fiat.”

Weekly incidents

The state Board of Tax and Land Appeals has awarded the Malnatis $30,000 as compensation, a ruling that both the state and the Malnatis have appealed in Superior Court.

Bob Spoerl, program specialist with the state Bureau of Trails, said that state is waiting until the litigation has run its course before adding the section to the roughly 300-mile Rails-to-Trails network.

The abandoned rail lines with their relatively flat terrain, make ideal trails for hikers, bikers or cross-country skiers, said Spoerl, citing the health benefits of the public use. The inconvenience of having a public throughway run though private property is not unique to the Malnatis or to farmlands, he said.

“There are a lot of landowners who have a house on one side and a lot on the other side of a road going through their property,” he said.

But John Porter, a professor and dairy specialist with the University of New Hampshire Cooperative Extension Service said public trails can cause real problems for farmers. Abandoned cans and other debris may get cut up by farming equipment, producing potentially deadly metal fragments in the animals’ feed. Even in the winter, recreational vehicles going off the trail can cause damage to crops, Porter said.

“When a snowmobile goes over the alfalfa fields, that’s next year’s crop sitting there,” he said. “When the snow is packed down, it loses its insulative value and turns to ice. So you get winter kill.”

Porter testified for the Malnatis as well as for Ray Nicol, who won the property rights to an abandoned rail line dissecting his 220-acre farm in Newton after the town had acquired the corridor and turned it into a recreational trail. Nicol also won a cash settlement of nearly $400,000 from the town in a legal battle over what he claimed were abuses to his property.

“We’d have incidents on a weekly basis,” said Nicol, who claimed snowmobilers would often go off the shaded, snow- covered trail and onto the open fields. “They’d go right off the snow and into the mud and tear up the sod we’d established for making hay.”

Gail Hanson, executive director of the New Hampshire Snowmobile Association, said the organization is not aware of snowmobilers causing problems for farmers.

“We’ve never had a complaint about that here at this office,” she said. “Why don’t we ever hear about these things?”

At ‘wit’s end’?

Hanson said snowmobile clubs work on keeping the trails and their surroundings free of debris and noted that a Plymouth State University study commissioned by her association showed the sport is making a healthy contribution to the state’s economy as well as its recreational opportunities.

“The economic impact of snowmobiling to the state of New Hampshire is $1.2 billion a year,” she said.

Donna Cushing, a former member of the Newton Conservation Commission, cautions that making life more difficult for New Hampshire’s dwindling number of farmers could end up having a wholly different kind of impact on both economy and character of the state.

“The Nicol farm is the only working farm left in town. I view that as extremely important to the open space and rural character of the town,” she said. “If the farm ceased to exist, there could easily be 100 houses there instead of beautiful fields and woods.”

According to Nicol, that was a real possibility.

“I think farmers live on such a small margin that I don’t think it takes too much to push them over the edge,” he said. “In our case, we were at the point where we’d have to go somewhere else to farm.”

There are others, he said, who feel the same way. “You don’t hear much about it but there are some landowners about at their wit’s end.”

Christopher Morgan, director of the state’s Bureau of Rails and Transit, said he certainly hasn’t heard about it.

“I really have never heard of an instance where a farmer feels his farming activity is being hampered by having a rail corridor go through,” said Morgan. “The last thing we want to do is make it any more difficult to farm. I don’t think we have.”

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