Assessing the impact of the Supremes’ “Brandt” decision on lands underlying railroads


Chief Justice John Roberts


On March 10, in an 8-1 decision, the U.S. Supreme Court ruled in favor of Marvin M. Brandt, a Wyoming landowner who opposed federal efforts to build a bike trail along abandoned railroad tracks crossing his land.

Mr. Brandt’s family had obtained title to the land from the U.S. in 1976 “subject to the rights granted to the railway company, its successors and assigns.” Brandt argued that by virtue of the Act of 1875, the United States had granted the railroad merely an easement interest.  The railroad subsequently petitioned to abandon its line.  Once abandonment was completed, Brandt argued that under common law principles, he was left with an unencumbered fee title to his property.

The United States disagreed, arguing that the abandonment triggered a reversion of title to the United States.  Although the Act of 1875 is silent on the point, the U.S. argued that the Act impliedly created a reversionary title right in the United States.

The Court agreed with landowner Brandt, holding that no reversionary interest in favor of the United States was implied by the Act of 1875. Writing for the 8-1 majority (Sotomayor, J., dissenting), Chief Justice John Roberts noted that 70 years earlier in Great Northern R. Co. v. United States,  315 U.S. 262 (1942), the U.S. had taken the opposite view and won the day.  In Great Northern, the U.S. had successfully argued that the railroad had only an easement and, once terminated upon abandonment, this left the U.S. free to develop the mineral rights underlying the former easement.

In siding with landowner Brandt, Justice Roberts stated that the United States cannot have it both ways.

The decision is great news for landowners whose properties literally cross paths with abandoned or even active railroad rights-of-way.  The United States is a major landowner, particularly in the West, controlling millions of acres.  The Brandt decision will help to shed more light on the nature of the title granted to railroads in the past by the United States.

Congress enacted dozens of laws in the 19th and 20th centuries pertaining to railroad rights-of-way.  In some instances, the laws authorized the grant of full fee title in lands owned by the United States or in the public domain to the fledgling railroads.  This was done, at first, to encourage westward expansion and reward the railroads for the huge risks they took.  Later, as ranchers and homesteaders put down roots and the railroads flourished, congressional authorizations became more scaled back by authorizing the grant of easements to railroads instead of fee interests.

This has at times created confusion over the precise nature and extent of the property rights that were granted to the railroads in the past and the impact on title upon abandonment of those property rights.  Here, the Court showed that it will decide such cases by giving close scrutiny to the language contained in the law that created the property right in the first place and will not stretch to find implied reversionary rights in favor of the United States.

Elizabeth Fagot Senior Advisor

An expert in federal real estate law and policy, Liz spent 30 years as an attorney with the U.S. Army Corps of Engineers, including becoming the first Assistant Chief Counsel for Real Estate (2004-2011).

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