On March 10, 2014, the U.S. Supreme court handed down a ruling of immediate interest to surveyors across the nation. The major dispute in this litigation centered on the rights established by railroads established over public lands under the General Railroad Right-of-Way Act of 1875 Act, 43 U.S.C.S. § 934. This recent decision—Brandt v. U.S.A.1—includes specific conclusions regarding the rail line under consideration, and also provides valuable guidelines for anyone attempting to determine property rights for railroads in any jurisdiction of the United States.

Chief Justice Roberts begins with background information on prior railroad enabling statutes and includes a discussion of the changing public attitude that led up to the passage of the 1875 act. These considerations are essential to a proper understanding of the legislative intent of the U.S. Congress. Circa 1870, government officials bowed to public pressure and began to condemn previous legislative acts that granted lands in fee simple absolute to the railroad companies. These grants had previously been made to individual railroad companies in exchange for their commitment to construct additional rail lines extending into the western states. A house resolution recorded in 1872 summarizes the popular opinion of the day: “…the policy of granting subsidies in public lands to railroads and other corporations ought to be discontinued, and that every consideration of public policy and equal justice to the whole people requires that the public lands should be held for the purpose of securing homesteads to actual settlers, and for educational purposes, as may be provided by law.” 1

As a direct result of the attitude prevalent at that time, the 1875 act was designed to create only a limited property right for the benefit of the railroad companies. This attitude is also reflected in the plethora of special acts passed between 1871 and 1875 for the creation of specific rail lines through public lands. It should be noted that the relevant portions of the 1875 act remained in force for over 100 years until they were finally repealed in 1976.

Coincidentally, 1976 also marks the date of an 83-acre patent to Melvin and Lulu Brandt in Fox Park, Wyoming. This grant was made in fee simple, subject to several exceptions. These included rights associated with two roads existing at the time, and the grant also included the following language:“subject to those rights for railroad purposes as have been granted to the Laramie[,] Hahn’s Peak & Pacific Railway Company, its successors or assigns.” 1

The rail line under consideration was created in 1908 and was originally assigned to the Laramie, Hahn’s Peak and Pacific Railroad. The original line was 200 feet in width and stretched from Laramie, Wyoming to Coalmont, Colorado. Never a profitable route, the rail line changed hands several times until it came under the control of The Wyoming and Colorado Railroad, which then notified the Surface Transportation Board that it was abandoning the line in 1996. The tracks were removed, and abandonment was considered complete in 2006.

Also in 2006, the U.S. Government initiated an action to quiet title to the abandoned railroad. This action was disputed by Brandt, who claimed that only an easement existed and that he owned fee simple title to the property formerly occupied by the rail line. The government argued that a reversionary interest had been consistently retained by the U.S. Government in similar situations.

The District Court and Court of Appeals both sided with government representatives, and the summary judgment granted at the lower court level was ultimately challenged before the U.S. Supreme Court.

 

The Problem:

This ruling hinges on the nature of the right granted to the original rail line in 1908. In an interesting argument, the government representatives claimed that while easements generally leave no residue when conclusively abandoned, railroad interests represent a separate class of property interests. This argument is not without merit, considering the wealth of special legislation and common law decisions that define the rights associated with the operation of a railroad line.

The term “right-of-way” is often associated with railroads and frequently creates confusion – both in the courtroom and among the general population. A right-of-way may describe a specific property interest over the land, or may refer to the strip of land itself. Ray v. King County,2 an excellent ruling from the state of Washington, affirms that a railroad right-of-way may be a fee simple strip of land or an easement, depending on the circumstances surrounding the creation of the rail line in question.

While one class of railroad right-of-way may be considered a type of easement dedicated for public use, statutes and safety regulations give railroad companies broad powers to control activities within the corridor. Road crossings are strictly regulated, and the public (including the owner of the underlying fee) may be barred from entering the rail corridor except in carefully controlled circumstances. In summary, the holder of a railroad right-of-way has discretionary powers within the affected area that extend far beyond those generally associated with easements for driveways or utilities.

 

Previous Precedent:

Fortunately for Brandt, a ruling involving a very similar situation was already on record. Great Northern Railway Co. v. United States [3] also dealt with a rail line created under the authority of the 1875 act. In this instance, oil and gas reserves were discovered under the right-of-way, and the railroad company was attempting to claim ownership of the underlying mineral rights based on the 1875 act. In this instance, the U.S. government had successfully argued: “That petitioner has only an easement in its rights of way acquired under the Act of 1875 is therefore 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.” 3

Discussion in Great Northern notes that the 1875 act creates a right that passes “over” the land, and results in a “right of occupancy.” Justice Murphy notes that the law was a “product of the period” and emphasizes the importance of surrounding circumstance in determining the true legislative intent of the act. Interpretations of the act recorded concurrently or shortly after the law was enacted are considered at length, and the court states: “Also pertinent to the construction of the Act is the contemporaneous administrative interpretation placed on it by those charged with its execution…The first such interpretation, the general right of way circular of January 13, 1888, was that the Act granted an easement, not a fee. The same position was taken in the regulations of March 21, 1892, 14 L. D. 338, and those of November 4, 1898, 27 L. D. 663. While the first of these circulars followed the Act by 13 years, the weight to be accorded them is not dependent on strict contemporaneity.” 3

It is unfortunate for the recent government arguments found in Brant v. U.S.A. that government counsel in this instance took a position precisely the opposite of that argued by the government in Great Northern. At this point, it is apparent that the U.S. government position taken in Brandt v. U.S.A. is severely compromised by the precedent established in Great Northern.

 

Discussion:

Despite the inevitable result of the earlier discussion, the government representatives were not yet ready to quit the field.  Justice Roberts, in a moment of levity (or sarcasm) notes that the government representatives now indicate that “Great Northern did not really mean what it said… Government asks us to hold that the right of way is not an easement for purposes of what happens when the railroad stops using it.” 4

The chief Justice includes a basic definition of easements in his analysis: “An easement is a “nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.”” 4 He notes that, unlike most possessory estates in land, an easement disappears completely when abandonment is conclusive proved, leaving the possessor of the underlying fee with unencumbered ownership. Previous precedent suggests that assuming any reversionary right in this circumstance would be unreasonable.

In an interesting argument, the government representatives claimed that while easements generally leave no residue when conclusively abandoned, railroad interests represent a separate class of property interests.

Government argues that, because of the unique rights associated with railroad rights-of-way, the 1875 act cannot (and was not intended) to create a “bare common law easement” and that a reversionary right was implied. This argument is of particular importance because of the plan to convert the former railroad right of way into an urban trail under authority of the National Trails System Improvements Act of 1988. The additional argument was raised that this act implies a belief on the part of congress that a reversionary right to the United States exists for railroad rights-of-way.

The specific language of the 1988 act states that: “any and all right, title, interest, and estate of the United States…” will remain with the United States if the interest is abandoned. However, the language of this act does not seem to create additional rights that did not exist previously, and furthermore does not detail the process by which those existing rights may be defined.

The final 8-1 decision in Brandt v. U.S.A. includes this statement: “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…” 4

The dissenting opinion includes several interesting points despite the overwhelming majority set against it. Justice Sotomayor points out that statutes and rulings across the country underscore the differences between common law principles applied to easements in general as opposed to those applied to railroads. When dealing with railroad rights-of-way, it may be misleading to use conventional definitions of “easement” and “fee” without considering the unique nature of the right under discussion.

The dissent includes an impressive list of rulings (at both the state and federal level) that underscore the differences between railroad rights-of-way and more typical common law easements. In particular, it is demonstrated that even a “mere” railroad easement confers a right of exclusive use. Other sources quoted indicate that railroad easements have their own peculiar nature, and should be considered “more than an ordinary easement.”

As is the case with any court decision, it is important to note what Brandt v. U.S.A. does not say. There is no mention of any basic constitutional problem with the National Trails System Improvements Act of 1988. Nor is this ruling intended to call into question reversionary interests held by federal or state government on other rail lines created under the authority of different legislative acts. However, it is impossible to overstate the significance if this decision. Thousands of miles of rail lines across major portions of the country were created under the aegis of the 1875 act.

In a more general sense, this ruling demonstrates the principles and process by which property rights may be determined for any rail line. While the words of the original enabling act are critical, it is important not to focus too much on one small part of the legislation while ignoring other significant portions. In other words, consider the document in its entirety rather than taking a piecemeal approach to analysis.

In addition, this court emphasizes the importance of surrounding circumstances when determining the intent of legislative acts. The current court (and the court associated with the ruling of Great Northern) went to great lengths to determine the political tone of the nation at the time the legislation came into being. They also consulted related documents written concurrently, or shortly after the enactment of the original law. The specific language of the landowner’s grant was a critical consideration and its interaction with the rail corridor rights was also a factor. Depending on the specific words contained in his grant, the end result could have been quite different for Brandt, regardless of the language of the 1875 act.

As these rulings demonstrate, determining all of the relevant circumstances regarding any conflict between railroads and private landowners is an arduous and difficult process. However, it is equally clear that complete research and analysis are crucial for any legitimate determination of property rights associated with rail lines.
 

FOOTNOTES

  1. Brandt Living Trust v. U.S.A.: 710 F.3d 1369 (2013)
  2. Ray v. King County: 120 Wn. App. 564; 86 P.3d 183 (2004)
  3. Great Northern Railway Co. v. United States: 315 U.S. 262; 62 S. Ct. 529; 86 L. Ed. 836 (1942)
  4. Brandt Living Trust v. U.S.A.: 710 F.3d 1369 (2013)

 

Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.


Kris Kline is president of 2Point Inc., Alexander, N.C. Kline teaches several classes on boundary retracement but remains a student of the discipline. He can be reached at kkline@buncombe.main.nc.us. More information on Kline's available continuing education courses can be found at www.2point.net. Kline’s first book, “Rooted in Stone: the Development of Adverse Possession in 20 Eastern States and the District of Columbia,” is available from the author.