Happy Trails – Property Owner Wins Before USSCT

On March 10, 2014, the United States Supreme Court issued its almost unanimous (8-1) decision in Brandt Revocable Trust v United States.  The question presented is detailed in our prior blog here, but simply stated, the government argued that it owned the ground underneath an abandoned railroad right-of-way that permitted it to continue the Medicine Bow Rail-Trail across private property owned by Brandt without payment of just compensation.

The core question was whether the 1875 Railroad Right of Way Act granted easements or limited fee interests to railroad companies to spur America’s growth west-ward.  The answer, disappointing to rails to trails advocates, was that the original grant was only an easement.  Therefore when the railroad right-of-way was abandoned, the underlying land returned to the fee owner, here Brandt.  Thus, in order to reopen that portion of the Medicine Bow Rail-Trail, the government would have to utilize its eminent domain power to acquire the private property along with the constitutional duty to pay just compensation.

It will be interesting to see whether the government actually condemns private property to create new trails and/or legitimize existing trails, or whether property owners will claim that creation of a trail was a temporary taking requiring payment of compensation.

More information about this case is available on the Inverse Condemnation Blog by our Owners’ Counsel of America colleague, Robert Thomas, who submitted an amicus curiae brief in the Brandt matter.