April 30, 2013

PLF asks Supreme Court to review important property rights case

By Brian T. Hodges Senior Attorney

Last week, PLF attorneys filed an amicus brief with the U.S. Supreme Court in support of Wyoming landowner Marvin Brandt in his struggle to protect his land from a federal land grab.

The case arises from the government’s “Rails-to-Trails” program, which seeks to convert old, abandoned railroad tracks into recreational trails. Back in the Nineteenth Century, railroads acquired easements all over the country in order to lay tracks. These easements were typically written so that they would revert back to the property owner in the event the railroads ever abandoned the easements. But in 1988, Congress passed a “railbanking” statute which holds that upon abandonment, these easements could be morphed into a public recreational trail, with the landowner receiving no compensation.

A number of landowners across the country have sued, often successfully, for the compensation to which the Constitution entitles them. In this case, however, the United States brought a quiet title action claiming that there is an “implied reversionary interest” in the easements that trumps the landowners’ interest. PLF’s amicus brief asks the Supreme Court to take this case up, primarily because there is no such thing in property law as an “implied reversionary interest in an easement” that somehow overrides the constitutional guarantee of just compensation whenever a property owner’s land is taken away.

For certified law geeks, the case raises a host of questions that are sure to bring back some of the night terrors induced by first year Property Law. Rails-to-Trails cases are typically resolved by resorting to the common law understanding of the specific property interest that the parties hold in the disputed land. For example, if the railroad owned the land as a freehold estate (e.g., a limited fee, fee simple determinable, base fee, or qualified fee), its successors in interest can make whatever lawful use they want of the land. If, however, the railroad only had an easement allowing it to use the land for a specific purpose, and the underlying landowner (the servient estate) holds a fee simple absolute, then the abandoned easements is extinguished and the property belongs to the underlying owner.  In that circumstance, the government cannot establish a recreational trail without first paying the owner just compensation.

PLF’s amicus brief argues that the Tenth Circuit’s decision in Brandt v. United States turns the common law understanding of property on its head by creating a property interest that has never existed before and undermines the rights and expectations established by one’s title in his or her land.

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