November 21, 2019

Have Rails-to-Trails Efforts Been Derailed?

Jean Feriancek

The U.S. Supreme Court decision in Marvin M. Brandt Revocable Trust v. United States, __ U.S. __, 134 S. Ct. 1257 (2014), brings to the forefront the question of what type of property interest a railroad “right-of-way” (ROW) is. The ROW at dispute in Brandt was obtained by a railroad in 1908 across public lands under the General Railroad Right-of-Way Act of 1875, 43 U.S.C. §§ 934–939 (1875 Act). In 1976, the United States patented the land crossed by the railroad ROW into private ownership “subject to those rights for railroad purposes” that had been granted to the railroad. A successor railroad abandoned the ROW in 2004. The issue in Brandt was whether a ROW created under the 1875 Act was a “mere easement” that was extinguished upon abandonment, or if it was something more than an easement in which the government retained a reversionary interest. Following abandonment by the railroad, the government sought to quiet title to the ROW in an effort to turn it into a public recreational trail.

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