Supreme Court Grants Certiorari in Another Taking Case — With a Weird Twist

Word reaches us from darkest Washington that though the lights are out and the federal government may be shut down for lack of ready cash, the U.S. Supreme Court is chugging along as usual. This morning, it announced the grant of certiorari in Marvin M. Brandt Irrevocable Trust v. United States, to review a decision of the U.S. Court of Appeals for the 6th Circuit, in order to review one of those cases involving the aftermath of the Rails-to-Trails mess.

Brandt raises the familiar question of who owns the strip of land on which a railroad used to run, but no longer does. At first glance, it appears to deal with the first-year law school proposition that when a dominant owner of an easement ceases to make use of it, that is deemed an abandonment of the easement, and the strip of land covered by the easement reverts to the servient owner unburdened by the easement (technically, it’s not a reversion, but that’s what lawyers have been calling it, so we’ll go along with the gag). The result is that, the easement having been terminated, the strip of land in question on which the railroad used to run, is now owned in fee simple absolute by the [servient] owner of the former railroad right-of-way area.

But in the Brandt Trust case the procedural posture is new. Whereas in previous cases of this type (there are dozens of them) the formerly servient owners sues for a taking when the government converts the former railroad right-of-way into a hiking trail or such, in Brandt the government sued to quiet title, arguing that when it conveyed the strip of land for a railroad right-of-way back in the 19th century, under the authority of the 1875 General Railroad Right-of-Way Act, it did not just convey a plain old garden variety railroad easement, but also retained a reversionary interest which it now wants to assert, thereby precluding the servient owner’s claim. We find it odd, to put it with restraint, that in the 138 years this law has been in effect, nobody noticed this peculiar feature of it.

That nobody did so is perfectly understandable, because there is an old, thoroughly settled legal principle whereby the law abhors the creation of land strips and gores, because their existence would raise hell, particularly in cases just such as this one. If the old rights-of-way would become the unencumbered property of the original grantor (or his successors) who usually no longer own land in the area, it would create nuisance litigation and not much else, because typically, the resulting strips and gores would be useless for any reasonable use. For one thing, the owner of that “reversionary” interest would have no access to those strips and gores. That’s why these cases are litigated by private parties pretty much only when, for example, oil or minerals are discovered under the former right of way, or, more recently, owners of land underlying the now unused right-of-way  (who ordinarily would become the fee simple owners of the former right of way), are told by the government that under the federal Rails-to-Trails Act, the former easement area will be converted  to a hiking or biking trail which will bring strangers (not all of them friendly, well mannered or law abiding) and their garbage into the owners’ back yards.

Absent these circumstances, such strips and gores are completely useless to everybody, but taxes have to be paid on them, and they can become sources of tort liability. So that is why it is a strong legal presumption that their original grantor did not intend to retain any kind of residual title in them, and did not intend to lay a foundation for the creation of useless bitty pieces of land good for nothing but litigation.

If you are interested in the parties’ current arguments in Brandt, you will find good write-ups in the blogs of our colleagues Robert Thomas ( and Rick Rayl ( — see their posts of today, Oct. 2, 2013. Have fun.