This case, the latest installment in the “rails to trails” litigation saga, deals with who owns thousands of miles of abandoned railroad rights of way located all across the country. These are strips of land only a few hundred feet wide that were granted to railroads out of public land by the Federal Government under the General Railroad Right-of-Way Act of 1875 (“1875 Act”). Private property owners like the Brandts claim that the railroads received only easements and that, upon abandonment, the land occupied by the easement reverts to the exclusive use and possession of the fee owner of the underlying land, who is now often a private party like the Brandts.
Indeed, that was the position vigorously advocated by the Government in Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942), where the Supreme Court agreed that these rights of way are easements and not limited fees with an implied reversionary interest in the United States. In more recent times, however, Congress has laid claim to these strips of land in order to convert them into public recreational trials. As a result, the United States flip-flopped, and its position now is that these rights of way were granted to railroads as limited fees for the purpose of operating a railroad. On this view, the grant was entirely distinct from any grant of the fee interest in the abutting lands received from the United States by homesteaders or other private parties. On abandonment of use for railroad purposes, the Government now contends, the land reverts to the United States, which may then freely convert it to what use it chooses.
In 1976, the Brandts were granted fee simple title to public land in Montana. Across the land ran a right of way granted under the 1875 Act. When the right of way was declared abandoned on 2003, a dispute arose between the Brandts, who claim ownership of the strip of land as an abandoned easement, and the United States, which denies their ownership and claims the land for itself. After the federal district court found for the Government, the case went to the U.S. Court of Appeals for the Tenth Circuit. That court, in conflict with the Federal Circuit and the Seventh Circuit, accepted the Government’s (current) legal and historical analysis and affirmed the lower court’s judgment. It found Great Northern to be not exactly on point. The Brandts timely petitioned the U.S. Supreme Court for certiorari, and the petition was granted, the United States agreeing that review of the tangled legal history of these rights of way was needed.
NELF has previously been involved in “rails to trails” litigation. In 1996, NELF represented similarly situated property owners from Vermont. See Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996). In that case, NELF argued that the rights of ways were easements and the United States must pay if it wishes to take them for use as trails. In the present case, NELF filed a brief in which it undertook to rebut the Government’s assertion that the exclusive control formerly exercised by the railroads over the rights of way demonstrates that the rights of way could not have been easements but must have been fee interests. NELF reviewed legal authorities from around the time of the 1875 Act and showed that they generally recognized that, under certain circumstances, the holder of an easement could sometimes exercise exclusive control, especially in the case of a dangerous instrumentality like railroad. NELF then rebutted the Government’s assertion that, in the debate on the 1875 Act, key House members had acknowledged that the Government would retain a reversionary interest in the rights of way. Conducting a close reading of the text of the debate, NELF showed that the debate actually revealed the members’ acknowledgement that the Act would depart from the prior practice of granting railroads fee interests and instead grant easements, just as the Brandts argue.
In March 2014 the Court, in an 8-1 decision written by Chief Justice Roberts, ruled in favor of the Brandts. Against the view taken by the Tenth Circuit and by the Solicitor General, the Court ruled that Great Northern disposes of the dispute in its entirety; the Court declined to open legal and historical questions settled in that case seventy years ago. Still pending in the U.S. Court of Claims is the Brandts’ claim against the United States for just compensation. That action had been stayed until the issue of ownership could be decided by the Supreme Court. It remains to be seen whether the Government’s keenness for trails remains strong, now that it has to pay people like the Brandts for each right of way converted to a trail.