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This case involves the Railroad Right-of Way Act of 1875, under which thousands of miles of rights-of way were established across America. The question is whether the United States retains the right to keep those corridors in public use (such as trails) after railroad operations have ceased.


arrow Brandt v. United States was argued before the court on January 14, 2014 and decided March 10, 2014.


Rail trail case decided by Supreme Court favors adjacent landowner

DECISION: On March 10, 2014 the U.S. Supreme Court ruled 8-1 that the railroad right-of-way across a Wyoming landowner's property does not belong to the U.S. government. The corridor ownership that was established by a railroad was extinguished when the railroad was later abandoned, and did not revert to public ownership. The judgment of the United States Court of Appeals for the Tenth Circuit, which had earlier ruled against the landowner, was reversed.

MAJORITY OPINION: "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..."
— Chief Justice John G. Roberts, Jr.

DISSENTING OPINION: "By changing course today, the court 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."
— Justice Sonia Sotomayor

photo of straight dirt trail between trees

Rail trail in Kansas: Thousands of miles of corridors were granted for
railroad use across the United States


The many miles of corridors that have been “railbanked” or preserved under the federal railbanking law for future rail use, would not be affected by the ruling. The concern is that hundreds of completed rail trails across the country do involve federally granted rights-of-way. The decision opens up these existing trails to potential litigation, and could result in closure of trails or expensive settlements to keep trails open.



"Courts have long struggled with how to characterize the nature of the property interests in federally granted railroad rights-of-way," says the brief by the Department of Justice in Brandt v. United States. In this case before the Supreme Court the question is "Did the United States retain an implied reversionary interest in 1875 Act rights-of-way after the underlying lands were patented into private ownership?"

The Congressional Research Service in 2006 summarized the legal background to the issues now being addressed in Brandt: "Some cases have held that Rails to Trails results in takings of private property when non-federal easements were involved. In the context of federal rights of way, recent cases have held that the federal government did not retain any interest in federal railroad rights of way when the underlying lands were conveyed into private ownership, and therefore if an abandoned rail corridor is held for interim trail use, compensation is owed the adjacent landowners. However, Congress has legislated numerous times over the years regarding federal railroad rights of way, as though Congress believed it had continuing authority over their ultimate disposition."

Most of us involved with trails are familiar with the 1983 "Railbanking" amendment to the National Trails System Act, which provides for conversion of railroad lines to trails. The legal basis is that the rail corridor is not actually abandoned, even though the rails may be removed, but kept intact for future possible railroad use. Thousands of miles of inactive rail lines have been converted to trails in every state in the country under the Act.

The railbanking provision has withstood numerous challenges over the years, and in 1990 the U.S. Supreme Court unanimously found the law was valid (Preseault v. ICC). However, numerous lawsuits have addressed various aspects of the conversion to public use. Landowners have objected to what they call a "taking" of their land. In the 1990 case, the Supreme Court ruled that the property owners were entitled to compensation for the land taken for these rail trails. In 1996, the Federal Circuit determined that the Preseault’s were entitled to compensation. That decision has led to more lawsuits, with some cases finding that railroad easements are more robust, while other cases have found in favor of payments to adjacent landowners.

According to a September 2, 2013 National Law Journal article "The Justice Department says 8,000 claims by property owners remain pending, spawning a whole new practice area— takings class actions. The landowners argue that converting rail lines into recreational trails represents a new use of their property, one for which they are entitled to compensation from the government under the Fifth Amendment. To date, the courts have agreed, and plaintiffs lawyers predict the ultimate liability for taxpayers could top $500 million."

Now 30 years after the original railbanking statute was approved by Congress, the Supreme Court will hear Marvin S. Brandt Revocable Trust et al., v. United States. The right-of-way in question was granted under the 1875 Act to the Laramie, Hahn’s Peak and Pacific Railroad Company in 1908, when all of the surrounding land was federal or state land. In 1976, a 83-acre parcel along the railroad was patented in a land exchange with the Forest Service. In 1987, the Wyoming and Colorado Railroad Company became the last successor to the right-of-way, and ceased operations of its tracks in 2004.

In 2006, the United States filed suit to quiet title to a 28-mile section of the right-of-way in order to extend an existing recreational trail. The court of appeals held that the United States does in fact retain a reversionary interest in abandoned 1875 Act rights-of-way. The landowners argue that an 1875 Act right-of-way is an “easement” and that the United States does not retain an implied reversionary interest after the underlying lands were patented into private ownership. The U.S. Court of Appeals rejected an appeal on this basis by the landowners.

Writing in 2008, Danaya C. Wright predicted the need for a higher court to address these issues with the 1875 Act. Wright also provided an analysis of how these conflicting court decisions could be resolved without compromising the Railbanking statute. Wright looks closely at Hash v. United States, a key case cited by the landowners in the Brandt case now before the Supreme Court:

"Even if the federal government's underlying fee interest has transferred to homesteaders, that does not mean the scope of the railroad easement is not sufficient to accommodate interim trail use or to require preservation of the right-of-way in federal hands for future transportation purposes. Hence, we should not conclude from the decision in Hash that the railroad's interest in its right-of-way is a typical, relatively weak, common law easement, or even an exclusive railroad one. Rather, it remains to be determined if it is a transportation easement that is subject to shifting public uses and can be reacquired by the federal government from the railroads without prejudice to the underlying fee owner remains to be determined. It would seem only logical that if the federal government gave away public lands to railroads for transportation and telecommunications purposes, that when the railroads no longer needed them, the lands would return to government control for other public uses. Only if the government determines that the railroad right-of-way has no foreseeable public use should the federal interest terminate and the underlying fee be unburdened."


For more information on the Supreme Court case and background on rail trail legal issues:

- Decision by Chief Justice John G. Roberts Jr., March 10, 2014

- Listen to the Oral Argument and questions by the Justices

- Brief by Cato Institute and National Association of Reversionary Property Owners (pdf 154 kb)

- Brief for the United States by Department of Justice (pdf 217 kb)

- Read analysis of the decision by Rails-to-Trails Conservancy

- Rail-to-Trails Program Costly to Taxpayers

- The Shifting Sands of Property Rights, Federal Railroad Grants, and Economic History: Hash v. United States and the Threat to Rail-Trail Conversions

- "Federal Railroad Rights of Way" by Congressional Research Service (pdf 105 kb)

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