Here are two more amici briefs supporting the petitioner in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. granted Oct. 1, 2013). That’s the case in which the Court is considering the meaning of the term railroad “right of way” as used in an 1875 federal statute.
The Cato, et al brief argues:
We doubt there is serious dispute that protecting individuals’ right to their property is a foundational purpose for which our national and state governments were established. But we begin from this point because the right landowners have to be secure in their property is undermined – or forfeited entirely – when title to property is not determined by established rules of property and principles of common law. Simply stated, faithful and consistent application of settled principles of property law is essential to secure an owner’s fundamental right to their property.
The Reversionary Property Owners’ brief argues:
For more than a century after passage of the 1875 Act, the administrative agency responsible for patenting public lands to private landowners issued patents without reserving any interests in the rights of way granted under the Act. This policy was consistent with the terms of the Act, the intent of Congress, and this Court’s precedent, including its unequivocal ruling in Great Northern Railway Co. v. United States, 315 U.S. 262 (1942): the 1875 Act granted merely easements, not limited fees with an implied condition
of reverter.
Accordingly, affirming the Tenth Circuit’s decision in United States v. Brandt, 496 Fed. App’x 822, 824 (2012), would reverse the historical disposition of the property interests like the ones at issue here—likely in excess of a million acres.
The result would not merely revest ownership in the United States long after it disposed of the lands in question. It would correspondingly divest ownership from thousands of property owners who, for generations, have sold their lands under warranty deeds, unaware of the unstated reversionary rights only relatively recently claimed by the United States
More briefs to come.