Here's the property owner's merits brief in the case about the meaning of the term "railroad right of way" in an 1875 federal statute, Marvin M. Brandt Revocable Trust v. United States, No. 12- 1173. The meaning of a term in a somewhat obscure federal statute in a quiet title action isn't a case of obvious interest here, but as the amicus brief we filed at the cert stage points out, a decision in the government's favor could jeopardize rails-to-trails takings cases.
The issue in Brandt is whether the federal government retained an "implied reversionary interest" when it issued railroad patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court asserting it owned the right of way, and that it did not revert to the property owner. The Tenth Circuit, in contrast to other courts, held that the right of way is subject to an implied reversionary interest, meaning that the property owner doesn't have "property" that was taken when the railroad was abandoned and was turned into a recreational trail.
Disclosure: we filed an amicus brief in the case supporting the petition, and intend to file a similar amicus brief on the merits next week.
Here's the argument as framed by the petitioner's brief:
The United States does not retain an implied reversionary interest in 1875 Act ROWs after the underlying lands are patented. The 1875 Act granted an easement, not a limited fee with an implied reversionary interest in favor of the United States. In Great Northern, based upon the language of the 1875 Act, the history surrounding its passage, the DOI’s early interpretation of the Act, and Congress’s subsequent construction of the Act, this Court unconditionally ruled that 1875 Act ROWs are easements. Fifteen years later, in Union Pacific, this Court reaffirmed that ruling.It was against this legal background that the United States issued the Patent in 1976. The Patent conveyed fee simple title to the land "subject to those rights for railroad purposes" granted under the 1875 Act. The "subject to" clause merely advised that the patented land was burdened by an easement "for railroad purposes." When a grantor, such as the United States, conveys fee simple title to land burdened by an easement the grantor does not retain an implied reversionary interest in the easement. Accordingly, when the 1875 Act ROW was abandoned, the railroad easement was extinguished and Brandt’s land became unburdened. These principles alone demonstrate that the Tenth Circuit erred.Even if these principles were not sufficient, Brandt should have prevailed on the strength of his Patent. A patent from the United States is the highest evidence of title. When the United States issued the Patent, it did not reserve any interest in the 1875 Act ROW, although it could have done so. In Leo Sheep, this Court reiterated the cardinal principle that the United States does not retain any property interests not expressly reserved in the patent, granting statute, or regulations. Nothing in the Patent, the 1875 Act, or the applicable DOI regulation suggested that an implied reversionary interest may be lurking in favor of the United States. The Tenth Circuit’s finding of an implied reversionary interest not only violated the sanctity of Brandt’s Patent, it upset the settled expectations of thousands of landowners who trace their title to patents issued by the United States "subject to" 1875 Act ROWs.The implied reversionary interest found by the Tenth Circuit simply does not exist. It is not in the 1875 Act, the applicable DOI regulation, or Brandt’s Patent. Instead, the Tenth Circuit created the implied reversionary interest from § 912, an act passed 47 years after the 1875 Act. This act did not amend the 1875 Act. Nor did it alter previously granted ROWs to include an implied reversionary interest. Instead, the language and history surrounding § 912 confirms that Congress originally intended to grant only easements to railroads under the 1875 Act. Based upon the inaccurate statement in Stringham that 1875 Act ROWs were limited fees, Congress mistakenly believed that the United States would be saddled with worthless strips of land as 1875 Act ROWs were abandoned. Accordingly, Congress passed § 912 to more closely effectuate Congress’s original intent in passing the 1875 Act, i.e., to ensure that homesteaders received all the land described in their patents, including 1875 Act ROWs upon abandonment. The Tenth Circuit’s finding of an implied reversionary interest in 1875 Act ROWs completely frustrates Congress’s intent in passing the 1875 Act, as reflected in both the 1875 Act and § 912.
More to follow, and we'll post the amici briefs when they are filed.
Brief of Petitioners, Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (Nov. 15, 2013)
