The rails-to-trails anniversary

Today is the anniversary of Marvin M. Brandt v. United States, more commonly known as the rails-to-trails case. In that case, PLF supported a property owner in a dispute over a proposed bicycle trail that would have split his land.

The property owner argued that railroad right-of-ways are subject to the same common law rules as any other easement. So when the railroad abandons the easement, it goes to the property owner, not the federal government. Indeed, this was the same position that the federal government took in a case it had won over 70 years ago. Not surprisingly, the Supreme Court sided with the property owner in an 8-1 decision.

What was surprising, however, were complaints by the government (echoed by the dissent) that lawsuits may cost American taxpayers hundreds of millions of dollars. That is an odd concern, considering that the Constitution requires the government to compensate property owners when it takes private property for a public use.

And the government, not the property owner, is the one taking another’s property in cases like rails-to-trails. The way to avoid lawsuits totaling millions of dollars is not to ignore the Takings Clause; it is to stop taking private property in the first place. And now that the requirement of public use has essentially been read out of the Constitution, it is all the more important for the requirement of just compensation to secure property rights for property owners.