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Are finders keepers and losers weepers in property law? p3

10/3/2014 | Real Estate Blog

It is hard, some days, not to think of Dr. Seuss when we are flipping through real estate cases. The expression from “Horton Hatches the Egg” is usually the first to come to mind: “I meant what I said, and I said what I meant. An elephant’s faithful, one hundred percent.” Property and contract law would be a lot easier, though much less interesting, if everyone would just say what they mean and mean what they say.

Legal documents, for example, used to be full of “party of the first part” and “whosoever” language. For the past 20 years or so, the federal government has been striving to write regulations in plain language, and the movement has spread to all types of legal documents. There are skeptics, of course, who say that clarity is not the same thing as precision, but, nonetheless, the legal profession is trying to say what we mean.

Sometimes, of course, people say what they mean and others still don’t understand. In a will contest, for example, the court looks for testamentary intent — is that really what the testator was saying, or did he mean something else? In the case we have been discussing in the last couple of posts, we have the same issue: Did the government mean “easement” or “easement” in when it crafted the General Railroad Right-of-Way Act of 1875?

In Marvin M. Brandt Revocable Trust v. United States, the government argued that the law didn’t grant “a simple easement” “under traditional rules.” Rather, it granted the railroads the “right to exclusive use and occupancy of the land.” The argument comes from earlier Supreme Court decisions holding that the 1875 law removed the strips of land that were the rights of way from the public lands available for sale.

So, when the government sold the surrounding or adjacent property to private citizens, the sale did not include the right-of-way. When the railroads abandoned the rights-of-way, the land reverted back to the federal government.

In our next post, our last in this series, we will discuss the landowner/appellant’s counterargument. A friend of ours summed it up this way: Essentially, the appellant is looking at the government’s position, furrowing his brows and saying, “Huh?”

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