We mentioned in the past the bizarre pattern of conduct of the Justice Department which has been obdurately resisting property owners’ claims in the so-called rails-to-trails litigation. In a nutshell, these controversies arise when railroads abandon their rights-of way on which they no longer operate trains. When this happens, the preexisting railroad right-of-way easements end, and the land covered by them reverts to the owner of the underlying servient estate, free and clear of the easement. But local government types and their environmentalist allies want some of those old rights-of-way preserved as public hiking guide and biking trails. But the problem is that since there are no longer any railroad easements over the subject land, the establishment of these trail easements permits the public to trespass over privately-owned land and is a thus taking of property. And since this occurs under the authority of the federal Rails-to-Trails Act, it means that Uncle Sam is the party doing the taking and as such is liable for paying just compensation.
But for reasons we don’t comprehend, the feds have been stubbornly resisting payment which is plainly due as a matter of now settled law, so owners of these strips of land have to file inverse condemnation actions against Uncle Sam in the U.S. Court of Federal Claims, where they have been winning consistently — in some thirty cases — click here.
Thor Hearne, the author of the linked post on inversecondemnation.com is a leading advocate for property owners in these cases, and has won a number of them. Do click on the above link and read what he has to say.
What strikes us as amazing is that the feds can simply work out a financial settlement with the owners who — as we noted above — are entitled to compensation as a matter of law. Instead, the feds try every one of these cases and lose in every one. The result is that in addition to the fair market value of the easements that would be payable in direct condemnations of these properties or in negotiated settlements with the owners, the feds have to pay not only the fair market value, but also interest and the owners’ attorneys” fees, as required under federal law in successful inverse condemnation cases. Why do they do it? Beats us.
But do click on the above link, and do read Mr. Hearne’s description of what hsd been going on. Amazing.