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Are finders keepers and losers weepers in property law? p2

9/22/2014 | Real Estate Blog

We are talking about a U.S. Supreme Court case decided in March 2014. The case — Marvin M. Brandt Revocable Trust v. United States, shorthanded as “Brandt” — was a win for property owners. And we are not just talking about homeowners. The ruling also protects the rights of businesses that own land along abandoned rail corridors.

In 1988, Congress passed a “railbanking” law. The law transferred the strips of land that the railroads had used to rails-to-trails organizations. Those organizations, in turn, would create a system of recreational trails. With so many rail corridors lying fallow, the law promised a nationwide network of hiking and biking trails for all to use.

However, those strips of land had been granted as easements to the railroads with specific provisions that they revert to the original landowners if the railroads ever decided they didn’t need them. The landowners along one particular corridor sued. If you are taking my land even for a worthy cause, the plaintiffs told the government, then you had better pay up.

The U.S. Constitution does give the government the right to take private land for a public use. The power of eminent domain is addressed specifically in the Fifth Amendment. The Constitution of the Commonwealth of Pennsylvania also confers this power to the state. However, in both cases the government is barred from taking land without paying for it.

In Brandt, the government argues that the original railroad easement was not really an easement. As Black’s Law Dictionary (9th ed. 2009) explains it, when a property owner grants an easement, he grants only “the right to use or control the land, or an area above or below it, for a specific limited purpose.” The government believes the easement in question wasn’t this kind of “traditional” easement. Rather, it was a kind of “easement plus.”

We’ll explain more in our next post.


National Federation of Independent Businesses, “Supreme Court Issues Landmark Ruling In Property Rights Case,” March 10, 2014

Marvin M. Brandt Revocable Trust v. U.S., 134 S.Ct. 1257 (U.S.,2014) via Westlaw