By Glen Hansen 

In Brandt Trust v. United States, ___ U.S. ___, 134 S. Ct. 1257, 188 L.Ed.2d 272 (2014), the U.S. Supreme Court held that rights of way granted by the U.S. Government to railroads under the General Railroad Right-of-Way Act of 1875 constituted easements, and not reversionary interests held by the U.S. Government, such that when a right of way granted in 1908 under the 1875 Act was abandoned in 2004, the servient property for that right of way became unburdened by the easement and all property rights were then held by the patentee of the underlying land.

In the mid-19th century, Congress began granting private railroad companies rights of way over public lands to encourage the settlement and development of the West. Many of those same public lands were later conveyed by the Government to homesteaders and other settlers, with the lands continuing to be subject to the railroads’ rights of way. In 1875, Congress passed the General Railroad Right-of-Way Act of 1875 (18 Stat. 482, 43 U. S. C. §§ 934-939), which provided that “[t]he right of way through the public lands of the United States is granted to any railroad company” meeting certain requirements, “to the extent of one hundred feet on each side of the central line of said road.” (The 1875 Act remained in effect until 1976, when its provisions governing the issuance of new rights of way were repealed by the Federal Land Policy and Management Act, § 706(a), 90 Stat. 2793.)

In 1976, the United States patented an 83-acre parcel of land in Fox Park, Wyoming, surrounded by the Medicine Bow-Routt National Forest, to Melvin and Lulu Brandt. The patent conveyed to the Brandts fee simple title to the land “with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging, unto said claimants, their successors and assigns, forever.” The patent also states that the land was granted “subject to those rights for railroad purposes as have been granted to the Laramie[,] Hahn’s Peak & Pacific Railway Company, its successors or assigns.” The patent did not specify what would occur if the railroad abandoned this right of way.

The right of way referred to in the patent was obtained by the Laramie, Hahn’s Peak and Pacific Railroad (LHP&P) in 1908, pursuant to the 1875 Act. The right of way is 66 miles long and 200 feet wide, and it meanders south from Laramie, Wyoming, through the Medicine Bow-Routt National Forest, to the Wyoming-Colorado border. A railroad was built over the right of way to accommodate a second gold rush in that area. Nearly a half-mile stretch of the right of way crosses Brandt’s land in Fox Park, covering ten acres of that parcel. In 1996, the owner of the rail line informed the U.S. Government of its intent to abandon the right of way. The railroad tore up the tracks and ties and completed abandonment in 2004.

In 2006 the United States initiated an action seeking a judicial declaration of abandonment and an order quieting title in the United States to the abandoned right of way. The Government named as defendants the owners of 31 parcels of land crossed by the abandoned right of way. The Government settled with or obtained a default judgment against all but one of those landowners—Marvin Brandt. In 2007, during the course of the litigation, the abandoned right of way was converted in the Medicine Bow Rail Trail. The District Court for the District of Wyoming granted summary judgment to the Government and quieted title in the United States to the right of way over Brandt’s land. The Court of Appeals for the Tenth Circuit affirmed. Even though the Tenth Circuit acknowledged division among lower courts regarding the nature of the Government’s interest (if any) in abandoned 1875 Act rights of way, it nevertheless concluded that the United States had retained an “implied reversionary interest” in the right of way, which then vested in the United States when the right of way was relinquished. The U.S. Supreme Court granted certiorari and reversed.

The dispute turned on the nature of the interest Congress granted to railroads in their rights of way under the 1875 Act. The Government argued that the 1875 Act granted the railroads something more than an easement, reserving an implied reversionary interest in that something more to the United States. But in an 8 – 1 decision, the Supreme Court held that the Government loses that argument “in large part because it won when it argued the opposite before this Court more than 70 years ago, in the case of Great Northern Railway Co. v. United States, 315 U.S. 262, 62 S. Ct. 529, 86 L. Ed. 836 (1942).” In Great Northern, the Court adopted the United States’ position and held that the 1875 Act “clearly grants only an easement, and not a fee.” 315 U.S., at 271. The Court in Great Northern stated that it was “clear from the language of the Act, its legislative history, its early administrative interpretation and the construction placed upon it by Congress in subsequent enactments” that the railroad had obtained “only an easement in its rights of way acquired under the Act of 1875.” Id., at 277. In the Brandt decision, the Court reaffirmed that statutory interpretation of the 1875 Act, and therefore held that when the railroad abandoned the right of way over the Brandt property, the easement was abandoned and the Government had no rights to that part of the Brandt property. The Court explained:

When the United States patented the Fox Park parcel to Brandt’s parents in 1976, it conveyed fee simple title to that land, “subject to those rights for railroad purposes” that had been granted to the LHP&P. The United States did not reserve to itself any interest in the right of way in that patent. Under Great Northern, the railroad thus had an easement in its right of way over land owned by the Brandts.

The Court noted that “[i]twas not until 1988—12 years after the United States patented the Fox Park parcel to the Brandts—that Congress did an about-face and attempted to reserve the rights of way to the United States.” However, “[t]hat policy shift cannot operate to create an interest in land that the Government had already given away.” The Court therefore concluded:

More than 70 years ago, the Government argued before this Court that a right of way granted under the 1875 Act was a simple easement. The Court was persuaded, and so ruled. Now the Government argues that such a right of way is tantamount to a limited fee with an implied reversionary interest. We decline to endorse such a stark change in position, especially given “the special need for certainty and predictability where land titles are concerned.”

The effect of the decision could end up closing the half mile portion of the Medicine Bow Rail-Trail that crosses over the Brandt property. Of course, the parties could negotiate a deal under which the Government buys a new right of way from the owners of the Brandt property, or the Government could acquire the property through eminent domain. But that reality caused Justice Sotomayor to complain, in her lone dissent, that the decision “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.” However, it remains to be seen whether those dire results will occur from this decision.

[Note: According to the Rails-to-Trails Conservancy, existing rail-trails or trail projects are not affected by the Brandt decision if any of the following conditions are met:

  • The rail corridor is “railbanked.” (This is the federal process of preserving former railway corridors for potential future railway service by converting them to multi-use trails.)
  • The rail corridor was originally acquired by the railroad by a federally granted right-of-way through federal lands before 1875.
  • The railroad originally acquired the corridor from a private land owner.
  • The trail manager owns the land adjacent to the rail corridor.
  • The trail manager owns full title (fee simple) to the corridor.
  • The railroad corridor falls within the original 13 colonies.]

Glen Hansen is senior counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.