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Are finders keepers and losers weepers in property law?

9/19/2014 | Real Estate Blog

In March 2014, the U.S. Supreme Court issued an important decision about property rights. The case, Brandt v. United States (formally known as Marvin M. Brandt Revocable Trust v. United States, 134 S. Ct. 1257, 188 L. Ed. 2d 272 (2014)), was about abandoned railroad rights-of-way that had been turned into public recreational trails.

The dispute starts, really, more than 100 years ago with the adoption of the General Railroad Right-of-Way Act of 1875. The country’s westward expansion cried out for faster, more efficient transportation of goods and people. The railroads were happy to oblige, but they needed permission from the landowners to lay tracks.

The Right-of-Way Act granted easements to the railroads across the country, and the railroads had the land they needed. The easements only granted the railroads temporary possession of the property. If or when the time came that the railroads no longer needed the land, the property rights would revert back to the landowner.

By the 1980s, railroads were in trouble. As they pared down their operations, they abandoned some of the rail corridors they had established a century before. Congress decided this network of narrow strips of land would make a great recreational trail system, so it passed an act that transferred control of that property from the railroad to rails-to-trails organizations. If the railroads needed the land again, the appropriate trails group would transfer the land back to the railroad.

The problem, as the Brandt case pointed out, was that the easements were supposed to revert back to the landowners. Once the government granted the railroads the right to the easements, it should have stepped out of the relationship. In the alternative, if the government wanted to turn the land over to someone else, it would need to follow the rules of eminent domain. And the government would need to compensate the landowners.

That’s not how the government saw it.

We’ll continue this 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