The disappearing railroad easement blues: riding the rails of Marvin M. Brandt Revocable Trust v. United States.

• Author: Thompson, Ernest

In Marvin M. Brandt Revocable Trust v. United States, the Supreme Court of the United States held that federally granted rights-of-way conveyed to railroads under the General Railroad Right-of-Way Act of 1875 are common law easements, rather than limited fee interests. The Court's ruling resolved a split among the circuit courts on the disposition of railroad rights-of-way once they are abandoned. The Court correctly relied on well-established principles of property law and precedent to uphold the property rights of private property owners. In so finding, the Court made it possible for the private property owners affected by rails-to-trails conversions to seek just compensation under the Fifth Amendment. This article discusses the decision and articulates a roadmap for practitioners to follow when dealing with private landowners whose property has been affected by rails to trails conversions.

1. INTRODUCTION

   The George S. Mickelson Trail is a 109-mile trail that wanders through the Black Hills of South Dakota. (1) This trail offers bicycling, hiking, and even horseback riding opportunities from Edgemont, South Dakota, to historic Deadwood, South Dakota. (2) The sights along the trail include wildlife, converted railroad bridges, and rock tunnels. (3) The George S. Mickelson Trail follows the route of an abandoned railroad right-of-way. (4) Although most of the trail passes through the Black Hills National Forest, the trail does, in fact, cross private property in several areas. (5) What is now an abandoned railroad was originally built by the Chicago, Burlington, and Quincy Railroad in 1890. (6) The Chicago, Burlington, and Quincy Railroad later sold this railroad to the Burlington Northern Railroad, who abandoned it in 1983. (7) In 1991, the trail opened with only six miles completed. (8) Construction of the remaining 103 miles of trail was completed by 1998. (9)

   Trails, such as the George S. Mickelson Trail, are precisely what Congress had in mind when enacting the National Trails System Act ("NTSA") (10) in 1968. (11) Currently, 21,669 miles of abandoned railroad rights-of-way have been converted into recreational trails throughout the United States. (12) Many of the railroad rights-of-way involved in these conversions were originally obtained by the railroads pursuant to the General Railroad Right-of-Way Act of 1875. (13) One such right-of-way trail is the Medicine Bow Trail in Wyoming. (14) Similar to the George S. Mickelson Trail, the Medicine Bow Trail crosses private property. (15) A portion of this private property is owned by the Marvin M. Brandt Revocable Trust and was the subject of Marvin M. Brandt Revocable Trust v. United States (Brandt III). (16)

   The conversion of a railroad right-of-way into a recreational trail crossing private property raises the following question: Does the Fifth Amendment's takings clause require the federal government to pay just compensation to the landowners whose property the trail traverses? (17) To answer this question, it is necessary to define the nature of the property interests granted to the railroads by the government. (18)

   The issue facing the Supreme Court in Brandt III was whether the 1875 Act granted the railroads a limited fee (19) with an implied reversionary interest to the United States or a common law easement. (20) In an eight to one decision, the Court held that the rights-of-way granted to the railroads under the 1875 Act are common law easements. (21) In so finding, the Court established that the property owners, and not the United States, have a reversionary interest in the 1875 Act rights-of-ways. (22) This holding implicates the Fifth Amendment's takings clause and increases the likelihood that the United States will be liable for providing just compensation for rails-to-trails conversions. (23)

   This article will first discuss the factual and procedural history of Brandt III. (24) Second, this article outlines the extensive legislative history of the United States government's land policies in regards to the railroads. (25) This section includes a discussion of the shift in congressional land grant policy towards the railroads following the 1875 Act. (26) It also discusses the subsequent statutes enacted by Congress that first sought to dispose of any interest held by the United States in the federally granted rights-of-way and later sought to retain title to abandoned railroad rights-of-way. (27) Finally, this article analyzes the holding of Brandt III in relation to the takings jurisprudence established by the United States Court of Appeals for the Federal Circuit. (28) This section also discusses the relevant statute of limitations. (29)

2. FACTS AND PROCEDURE OF BRANDT III

   1. FACTUAL BACKGROUND

      In 1976, the United States granted an eighty-three acre land patent (30) to Melvin M. Brandt and Lulu M. Brandt. (31) This eighty-three acre parcel of land is located in Fox Park, Wyoming, and is "surrounded by the Medicine Bow-Routt National Forest." (32) The land was subsequently transferred to the Marvin M. Brandt Revocable Trust ("Brandt"). (33) The land patent gave Brandt fee simple title to all eighty-three acres. (34) The land patent, however, included several limited exceptions and reservations. (35) Most of the reservations preserved the United States' right to continue to use the existing ditches, canals, and Forest Service roads in order to maintain its ability to access the surrounding federal land through the patented parcel. (36) The pertinent exception stated, "the land was granted 'subject to those rights for railroad purposes as have been granted to the Laramie, Hahn's Peak & Pacific Railway Company [("LHP & P")], its successors or assigns.'" (37) The language in the patent that reserved the right-of-way for the LHP & P did not include any explanation of what would happen to the right-of-way if it were ever abandoned. (38)

      LHP & P obtained this right-of-way in 1908 under the General Railroad Right-of-Way Act of 1875. (39) This right-of-way crosses the Brandt land for approximately one-half mile and covers ten acres of the eighty-three acre parcel. (40) In 1911, LHP & P completed construction of a railway that went from the Laramie coal mine in Wyoming to Colemont, Colorado. (41) This railway line was not as profitable as LHP & P had anticipated, and the company was sold several times between 1914 and 1935 (42) In 1935, the Union Pacific Railroad Company acquired the railway and owned it until 1987. (43) The railway was thereafter sold to the Wyoming and Colorado Railroad. (44)

      The Wyoming and Colorado Railroad used the railway as a tourist attraction until 1996. (45) The railway, however, was not any more profitable as a tourist attraction than it was as a coal railway. (46) In 1996, the Wyoming and Colorado Railroad informed the federal Surface Transportation Board ("STB") (47) it intended to abandon the railway. In 2004, after receiving STB approval, the Wyoming and Colorado Railroad removed the railroad tracks and ties completing the abandonment of the entire railway. (49)

   2. LOWER COURT PROCEEDINGS

      In 2006, the United States filed its lawsuit in the Federal District Court of Wyoming seeking a judicial declaration of abandonment of the right-of-way. (50) In addition, the United States sought an order quieting title in the United States to the right-of-way. (51) Initially, the United States filed the action against twenty-six different defendants who might have been able to claim interests in the right-of-way. (52) Shortly after filing its motion for summary judgment, the United States settled with all the defendants, except Brandt. (53) Brandt disputed whether the United States had any interest in the right-of-way and filed its own motion for summary judgment as well as a counterclaim seeking to quite title in the right-of-way in favor of Brandt. (54) In the counterclaim, Brandt also contended that quieting title to the right-of-way in favor of the United States would entitle Brandt to just compensation under the Fifth Amendment's taking clause. (55)

      The district court granted summary judgment to the United States based on the Tenth Circuit's interpretations of two statutes: 43 U.S.C. section 912 (56) and 16 U.S.C. section 1248. (57) The court held that the United States retained a reversionary interest in all the railroad rights-of-way granted under the 1875 Act. (58) The court reasoned that Congress enacted 43 U.S.C. section 912 because it believed that the United States retained a reversionary interest in railroad rights-of ways granted under the 1875 Act. (59) The court also found that Tenth Circuit precedent held that 16 U.S.C. section 1248(c) modified 43 U.S.C. section 912 so that the United States would retain these interest rather than transferring them to the adjacent property owners. (60)

      The Tenth Circuit affirmed the district court's holding that 43 U.S.C. section 912 applied to land granted by the United States under the 1875 Act and that the United States retained an implied reversionary interest in the right-of-way. (61) Both the district court and the Tenth Circuit Court acknowledged a split between the Tenth Circuit and other federal circuits. (62)

   3. THE SUPREME COURT OPINION

      1. The Majority Opinion

         The majority opinion, authored by Chief Justice Roberts, reversed the Tenth Circuit and held that the right-of-way crossing the Brandt land was a common law easement that did not reserve any reversionary interest to the United States. (63) The majority relied on the holding of Great Northern Railway Co. v. United States, (64) which held that the rights-of-way granted to railroads under the 1875 Act were easements. (65) In adopting the reasoning of Great Northern, the majority found that the language of the 1875 Act--"subject to such right-of-way"--is indicative of granting an easement and not a fee interest. (66)

         The majority also accepted Great Northern's interpretation of the 1875 Act as representing a...