The U.S. Court of Appeals' opinion in Barlow v. United States, No. 22-1381 (Nov. 22, 2023), isn't a groundbreaking opinion on takings (although yes, it did reverse the Court of Federal Claims's dismissal of the property owner's rails-to-trails takings claim), but is still worth a quick read.
The major issue was whether, under Illinois property law, a grant of a "right of way" intended to grant a fee simple absolute estate to the grantee (as the United States argued, and the CFC held), or whether it was an easement. The Federal Circuit came down on the side of the latter, holding that although there is a presumption of a grant in fee, "that presumption was rebutted by other express words in the [grant]." Slip op. at 9.
The grant included the words "right of way" (which indicate an easement), but also other words and terms indicating an easement and not a grant in fee:
Outside the granting clause, other express words in the ROW Agreements also rebut the presumption. First, the ROW Agreements’ “RIGHT OF WAY” title demonstrates an intention to convey easements. See Penn Cent. Corp. v. Commonwealth Edison Co., 512 N.E.2d 118, 120 (Ill. App. Ct. 1987) (explaining that deed entitled “Right of Way Deed” and referring to a right-of-way in the granting clause will be construed to convey an easement). Second, the “over or across” and “on or across” language in the ROW Agreements is consistent with the description of the right of way and shows an intent to convey an easement. See McVey, 427 N.E.2d at 217 (finding “over and through” language to indicate an easement); Diaz, 786 N.E.2d at 1042 (finding easement conveyed because “[c]onstruing [the] deed as creating a fee simple” would “render[] the terms‘over and through’ and ‘right-of-way’ meaningless”).
Slip op. at 10.
We think this one is worth your time, not so much for the analysis of Illinois easement law, but because it emphasizes the importance of framing the "private property" alleged to have been taken. Yes, in rails-to-trails litigation the "property" question is often dispositive (if this was a grant in fee, the plaintiffs would not have a reversionary interest once the right of way stopped being used for railroad purposes, and thus would have no "private property" that was taken by the feds' Notice of Interim Trail Use), but similar issues often lurk in other regulatory takings case.
Indeed, with the Supreme Court's recent focus on those "core" or "normative" property rights that are not solely defined by state law, the "what property?" issue is going to become even more important.
Barlow v. United States, No. 22-1381 (Fed. Cir. Nov. 22, 2023)
