Rails to Trails, a noteworthy program that turns abandoned rail lines into hiking trails, provides recreational opportunities for many. But the program has also put hundreds of thousands of acres of real estate — and the rights of private property owners — at stake.
Last week, the Supreme Court held in Brandt Revocable Trust v. United States that if the government wants to turn an abandoned rail line into a recreational trail, it must pay “just compensation,” which the Fifth Amendment requires when private property is taken for a public use. In comparison to some of the other cases on the court’s docket, Brandt looked a “sleeper,” but its implications are nonetheless important.
But let’s start at the beginning. In 1875, Congress, hoping to spur railroad construction and encourage settlement and development in the western states, passed the General Railroad Right-of-Way Act, which gave railroads “right of way through the public lands of the United States.” In 1908, the Laramie Hahn’s Peak and Pacific Railroad (“LHP&P”) took Congress up on its offer and acquired a 66-mile-long right of way in Wyoming.
In 1976, the United States granted an 83-acre parcel of land in Fox Park, Wyoming, to the Brandts, with an exception for the railroad right of way, as the LHP&P’s line ran through the Brandts’ parcel. But nothing in the deed said that the right of way would revert to the United States if the railroad abandoned it.
In 1996, the LHP&P’s successor did just that: abandoned the line and tore up its tracks and ties. Should the Brandts, who hold the underlying property, then take posession? Or can the United States, which gave the right of way to the railroad in the first place, turn it into a recreational trail? The answer was of interest not just to the Brandts but to all of the landowners who have railroad lines created by the 1875 Act running through their properties — who might soon find hikers, bikers, and others wandering through their land.
Courts have held that such recreational use is clearly different in kind from that granted to the railroad. In the ordinary course of land conveyances, the abandonment of a right of way like the LHP&P’s would reunite that right of way to the underlying property. (That is, unless the document creating the right of way specified otherwise.)
In a 1942 case, Great Northern Railway Co. v. United States, the Court concluded pretty much that. The majority held that the railroad had “only an easement in its rights of way acquired under the Act of 1875” and rejected the railroad’s contention that its interest entitled it to the oil and minerals in the ground below its right of way.
Seventy years later, in Brandt Revocable Trust, the government contended the opposite. The government told the court in Brandt that the railroad “got something more than an easement, reserving an implied reversionary interest in that something more to the United States.”
But the court declined to “endorse such a stark change of position,” reasoning that the grant of an easement does not include such an implied reversionary interest. Instead, the Court noted that what happens to easements when they are abandoned is “well settled.” In such cases, “the easement disappears, and the landowner resumes his full and unencumbered interest in the land.” That result follows for LHP&P’s right of way. It now belongs to the Brandts, and the government will have to pay “just compensation” if it wants to turn the rail line into a recreational trail.
A contrary result would have been a major defeat for property owners that have 1875 railroad rights of way running over their property. Without any indication in their deeds, those rights of way would have gone to the United States as the result of a lurking, unstated, implied reversionary interest. That would have upset the expectations of property holders throughout much of the West.
Instead, a fundamental right — the Fifth Amendment’s requirement of “just compensation” for government takings — was vindicated, and a federal land grab averted.
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