The Grand Jury investigated whether property owners adjacent to the railroad suffered any monetary loss when fiber optic cables were laid in the Caltrain railroad right-of-way.

Issue: Do the owners of real property adjacent to the Caltrain right-of-way suffer any monetary loss as result of the installation of fiber optic cables in the Caltrain right-of-way?

Fiber optic cables were laid in the Caltrain railroad right-of-way in San Mateo County. The Caltrain right-of-way is owned by the Peninsula Corridor Joint Powers Board (JPB). In other parts of the United States, class actions lawsuits have been filed regarding the improper use of railroad rights-of-way, alleging that the actual laying of such fiber optic cables exceeded the rights conveyed to the railroad. In those actions, the rights conveyed were specified for use only as a railroad easement, which did not include subterranean rights. In those actions, fiber optic companies tried to obtain the subterranean rights from the individual adjacent landowners to permit them to lay cable along each railroad's right-of-way. Class actions lawsuits were filed by those individuals claiming a right of reimbursement from the cable companies based on use outside the scope of the easements.

The 2001-2002 Grand Jury interviewed a prominent San Mateo County land use attorney to learn about the possible issues associated with the improper laying of the fiber optic cables along the Caltrain right-of-way. The Grand Jury then interviewed the attorneys for the JPB to learn the specific details of the actual sale between Southern Pacific Railroad and the JPB. The Grand Jury also contacted attorneys handling some of the class action lawsuits that were filed elsewhere to learn about the issues involved and the specific details of their class action lawsuits.

The railroad right-of-way was granted to the JPB by Southern Pacific in 1991. This transfer included the right to use the underlying land for other uses, e.g. the laying of fiber optic cables. When Southern Pacific conveyed the land, a CLTA (California Land Title Association) title search was done, the grant was recorded, and the subterranean rights were properly conveyed. Further, at the time of the conveyance, some fiber optic cables were already in the ground and were transferred along with the railroad right-of-way. These facts differ from those in the class action lawsuits filed elsewhere because the sale to the JPB did not involve individual adjacent property owners or infringement of their property rights without proper reimbursement. Southern Pacific's grant to JPB included the railroad right-of-way and the subterranean rights. Thereafter the grant was properly recorded.

The JPB has the right to use the right-of-way to lay cables or to otherwise grant subterranean rights to cable companies at the same time that Caltrain operates the rail transportation system. The leasing of the subterranean area to a third party for fiber optic installation does not violate adjacent property owners' rights..