On March 10, 2014, the US Supreme Court issued its decision in the quiet title case, Marvin M. Brandt Revocable Trust v. US (PDF). In an 8-1 decision, the court sided with a Wyoming property owner in a dispute over a proposed bicycle trail that would follow the route of an abandoned railroad line bisecting Brandts' land. The issue decided was a narrowbut extremely importantquestion of property law: who owns the land underlying a railroad right-of-way after it stops being used as a railway?
On that question, the court ruled that railroad rights-of-way are subject to the same common law rules as any other easement. In so ruling, the court rejected the government's argument that federal land grants operate under an entirely different set of rules from other property. The government had asked the court to rule that it retained an "implied reversionary interest" in the railroad easement, such that, when the railway was abandoned, ownership would vest in the federal government, not the underlying property owner. There were many problems with the government's argument, not the least of which was that it had successfully argued the opposite position, that railroad rights-of-way are common law easements, more than 70 years ago, in the case Great Northern Railway Co. v. US. And an "implied reversionary interest" simply cannot exist under the common law of estates and servitudes. Thus, applying the common law of property, the court explained that the right-of-way crossing Brandts' land was extinguished upon abandonment, and, by operation of law, Brandt holds the property free of any servitudes.
The decision, with its discussion of estates and servitudes, is destined to grace many a Property Law textbook in the coming years. But another aspect of the decision has drawn much public attention and criticism. Many commentators immediately jumped to the conclusion that the decision was a referendum on the federal government's "Rails-to-Trails" Act, which seeks to convert old, abandoned railroad tracks into a nationwide system of recreational trailsseveral proclaiming that the sky was falling on the trails program.
That reaction is not entirely unwarranted. Although the majority opinion did not make a single reference to "takings" or "rails-to-trails," those two issues provided the policy underpinnings for Justice Sonia Sotomayor's sole dissent (which drew insightful criticism), in which she cautioned that, by treating railroad rights-of-way as common law easements, the court undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation. And lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars.
Sotomayor wrote that, to avoid this public financial impact, she would suspend common law understandings of property ownership when the federal government transfers land to private ownership. According to her, words like "fee" and "easement"$#151;which establish the precise ownership interest conveyed and all legal rights and expectations arising therefrom"do not neatly track common-law definition[s]" when the government is involved. Thus, she concluded that the federal government should be allowed to convey an easement that doesn't operate like an easement in order to advance public policies like the Rails-to-Trails Act.
The problem with her argument is that the takings clause of the Fifth Amendment mandates that government pay just compensation when it seeks to take private property for public use. Indeed, a unanimous court made that precise point almost twenty-five years ago in Preseault v. Interstate Commerce Comm'n when it upheld the Rails-to-Trails Act against a facial challenge. In that case, the court cautioned that some of the abandoned railroad rights-of-way may be held in private ownership, which will require just compensation before converting the land into public recreational trails. Sotomayor's dissent in Brandtand all of the commentary it inspiredforgets Justice Oliver Wendell Holmes' famous warning in Pennsylvania Coal Co. v. Mahon "that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." Thus, even though bike paths on former railroad easements may be good and desirable, it doesn't mean that the public should get the land for free.
That point being made, it is important to refocus on what actually occurred in Brandt. The federal government tried to circumvent adverse US Court of Appeals for the Federal Circuit precedentwhich viewed railway rights-of-way as common law easementsby filing a quiet title action in a jurisdiction that disagreed with the Federal Circuit. It was a litigation strategy to convince the US Supreme Court to overrule Great Northern Railway and numerous Federal Circuit cases to recognize an "implied reversionary interest" in thousands of miles of abandoned railway easements across the western states. If successful, that strategy would have redefined the very words that establish ownership of property, allowing the government to seize hundreds of millions of dollars' worth of private land without paying any compensation. Simply put, it was an attempted end-run around the takings clause.
The failed strategy does not by any stretch of the imagination doom the Rails-to-Trails program. Indeed, national rail-trail advocates, the Rails to Trails Conservancy, immediately issued a press release refuting commentary predicting the demise of the trail program. The only impact that Brandt will have on the government's rails-to-trails policy is that, where the railway right-of-way was acquired as an easement, the government will have to condemn the land and pay the owner just compensation.
To property owners, however, the ramifications of redefining the words that establish property owners would have been disastrous. Landowners rely on titles to establish ownership of property. If courts were unwilling to give effect to titles, the owners' interests and expectations in their property become potentially worthless. Indeed, if the words of conveyance were not conclusive of ownership and could be altered by implied reservations, all property traceable to a federal land grant would have a cloud on its title. In that light, Brandt follows the Supreme Court's longstanding policy of upholding certainty and predictability in land titles.
Brian T. Hodges is the Managing Attorney of Pacific Legal Foundation's Northwest Center. He concentrates his practice on representing property owners, with a focus on Takings and Due Process litigation. He was co-counsel for the petitioner in Koontz v. St. Johns River Water Management District, and participated as an amicus curiae in Arkansas Game & Fish Commission v. United States. Hodges is the author of several articles concerning property rights.
Suggested citation: Brian T. Hodges, Brandt v. United States: Will Property Law Doom Rail Trails?, JURIST - Professional Commentary, Apr. 16, 2014, http://jurist.org/hotline/2014/04/brian-hodges-rail-trail.php.
This article was prepared for publication by Stephanie Kogut, Section Head of JURIST's professional commentary service. Please direct any questions or comments to her at email@example.com