well your argument next in case twelve eleven seventy three martin grant revocable trust gross's united states mr election or mr chief justice and may have please the court if upheld the decision below will upset one hundred years of property law and title to perhaps a million acres of land based upon an implied reversionary interest that the government recently created alike to make three points first the decision below violates leo she where this court rejected the government's attempt to create a property interest through implication and reaffirm that the government does not retain any interest not expressed reserved in the patent or the granting statute to the decision blows contrary to both the government's argument and this court's ruling in great northern that eight hundred seventy five act rights away are easements and nazis and finally the decision blows inconsistent with the apartment of interiors longstanding interpretation that the eight seventy five act granted only in the xmen it is axiomatic that the highest evidence of title in this country is a patent from the government when the government issues a patent it divest itself a title except for those interest of way were limited fees with implied reversionary interest the patent you talk about i'm not recalling it exactly it had something in it mentioned the railroad interest right yes it mentioned it in cont that it was subject to those rights for railroad purposes as have been granted to the railroad sounds like it was granted subject to a servitude rights for railroad purpose sounds like a servitude and of course that's how the department land and that's that controlled the title to bring god what they're saying i think the government's point is you know the side is saying and i don't remember the term up on my property law it was but it's the right term these you to write a river yeah yes but that's similar to the argument that the government made in one nine hundred forty two in great northern limited feeling that i'd say it's different in this respect it's different that there they were talking about who owns the mineral rights so for those purposes they say it's treated like any easier but for who gets the revert or it's trysted like a shift of the feet oh it's nice if you know of any other real estate thing which it's an easement for one purpose and the fee for another the government absolutely deny it in great northern did it was that was the government's case this was not a fee exactly that would say it's you know for some purposes it is for they said it was not a fee and that's what the court held country in accordance with what the government wanted right correct and that case has been around for how long seventy two years  and the case explicitly says it's a nice and people have been buying and selling real estate i assume in reliance on that case for for that entire period of time and now the government has this new theory that for some purposes it's a fee for some purposes i easement it's not what great gordon said no but i think it's important that the government the argument that the government is making today is similar to their alternative argument that they made there in great northern saying ok well that's not an easement that it's a limited fee in the surface this court in great northern did not even address that alternative arguments which shows how strongly this court in great northern believe it was just an easement in this building or not they're not really all term maybe it's hard to say there are alternative arguments but they're mutually exclusive arguments i mean they're all trying to the sense that they lead to the same result but the one argument is this is a in the other argument is this is not a yes to be mutually exclusive five a brief here from the cities and they point out that that of course there is a reliance on your side your abs i believe you're right but they say there's also a lot of reliance on the other side because cities and build highways and they've or states have and they've converted  use under patents or under statutes that the united states keep them that right and all those are going to be invalid if you win that what's your response to that they would own i'm not sure that they town site planet or something like that that as opposed to here where was originally pad to one under one patton and i'm not sure how all this city's property was acquired by issue i assume your answer would be that if it's a choice between disappointing people who properly relied on the law and disappointing people who were were not following the law it's clear who should who should take it in the neck it's the latter isn't it absolutely plus and seventy five back that's what that's what they that's what the cities were relying on but you must keep in mind that that section nine twelfth's did not alter or amend the eight hundred seventy five ac land that would be administrative leave burdensome to manage and they said well originally they said well let's get into the cellars because they're the ones in title to the first place and then then then as an afterthought say well let's put these in the hot as a public highway but they did as the government argued in great nor that as this court adopted that argument the key provision eight hundred seventy five act of section four which reserve the right to congress to dispose of the lands underlying eight hundred seventy five rights away to settlers and this is a reflection of the change of policy in one thousand nine hundred eighty one because that's where the congress changed its policy to in an effort to secure homesteads to actual settlers as opposed to benefiting and knew what the significance of using that term would mean so did the government at the time there were there were points along the right of way where the railroad needed to station or a wider area for water towers and so forth and it usually could receive those by simply filing a patent if it was within a permitted zone if it was within a day or two if that was if they were twenty miles equal distance or something like that how did they get station grounds the railroad could get a secure station grounds by filing a map with the station grounds with the local land office and once the secretary approved then they would acquire the set the station grounds but the nature of the grant that the fire station i think is the right of the station grounds are tied to the right away so if you abandon the right away the station grounds would also be extinguished and unburdened underlying feet could i ask you again about section mining twelve your patent says that it is subject to those rights for railroad purposes as have been granted to the railway company in particular and its successors in a science now that was that patent came after the  nine twelve and nine twelve clarifies the rights of order changes the rights of of railroad companies and says that if they abandon property within one year after that  they there can be a public highway established on that on that property so why wasn't your patent subject to that well wolf first i don't nine twelve did not change the grant to the railroad nine twelve ply if the government has any remaining interest in the right of way well you didn't get your property from the railroad you got it from the government  at a patent from the government so the question is what were they conveying to you and if you read the patent in connection with mine twelve is in the clear they're conveying to you everything arguably everything other than this a right to have a public highway stablished on that land when it was abandoned by the railroad they were conveying it subject to those rights for railroad purposes or th t because at the time that's when the ban him first began congress was worried we were going to have these isolated strips it didn't change the eight hundred seventy five act it didn't change the previously granted rights away to expand the scope of them but when they were abandoned and they came back under the law the time that the government had the implied condition of rebirth they came back the government said ok well if you want to establish a public highway that's fine otherwise it's going to go it's going  in your to the benefit of the setter but it didn't change the nature of the grant it didn't change the eight hundred seventy five act it didn't created it did not courageous in interest that wasn't there before it was just how to deal with the interest that the current congress thought it had after this court's decision and allison and strength i still don't understand it you say this was purely an easement all right so that means that when there's an abandonment the government has complete title to the property right is a convey that property to you but before they do that they say that there's this reservation of rights with respect to the establishment of highway i'm i'm one well i'm i'm troubled under your hypothetical the government still owns the underlying land when the railroads banded so when the railroad is a band and the two that when the railroad abandon us a piece of the right of way ok it then says that the interests of the united states  right title an interest in the state of the united states shall be vested in the town that builds i what your point is that's true but were they previously were they have previous were they have given and the were they conveyed to a private person they didn't have any right title and interest because on abandonment it was simply an easement and on abandonment that goes to the property owner who owns the  land on either side is that i mean it's your point is that the united states didn't have any right title and interest on the abandonment unless the united states continue to own the property to get to the street can i assign that easement to another person so that the by the person who buys my home can now walk through your backyard  in certain circumstances yes so what's wrong with the concept that when this land was given to you as a railroad right of way when so whether it's a trail or a highway or any of the other items that are specified in the statute that that easement is continuing to be used by the person who gave it which was originally to us and get your patent was given subject to the i d s so that right of way it was subject to those rights for railroad purposes correct what was the language of the and what do you want to read there where there is a question about whether that was actually the language was his or subject to those rights the last two paragraphs subject to those rights for railroad purposes have been granted to the railroad under the the right of way to public lands where yes and as the government argued in great northern that that was that right in the eight hundred seventy five that was a right to lay tracks it was a right of passage in eas first the shift in congress's policy and the railroads fell out of disfavor and congress passed a resolution saying you know we want to hold on of these lands to secure homesteads for actual settlers i mean i guess i thought if you were just dealing with this is a matter of first impression that the shift in congress this policy was a shift about whether to give away you know huge swaths of land to the railroads and that congress indeed decided enough of this we're not going to give these checkerboard grants of land to the railroad because they're making a mint from this and we'd rather did give it to homesteaders but there was i don't see any evidence that there was any shift in policy or any reason why there would be a shift in policy as to what the rights of way were whether they were easements or whether they were limited thius well section four as a lot to do with that and that is where congress reserved the right to dispose of the underlying lands to the settlers that that provision is not found in the create hundred or one railroad grants and scored a great northern look at that and you say you got to look at section four that provides light on how to interpret the right of way great in section one and because of congress is intent in the legislative history surrounding similar language when congress passed in one thousand nine hundred me two they called it the right away it's merely going to be in a conference i guess you know again if you were just looking at this as a matter of first impression the language of section four this is not seem to me to be very indicative of anything you know it says subject to the right of way so object to the right of way whatever the right of way is subject to the right of way it's easy been subject to the right of way if it's a limited fee doesn't seem to pick one or the other but as the government argued in great northern it would be silly to the patents go to the underlying layer and then that's what happened in this case because brant owns the underlying layers of metals well when you're at through it seemed to me and maybe you have to do this properly but you confused limited fee with sample with absolutely no obviously that's true of that's the same owner they merge well i was using limited field in the context as is the score used in towns and limited absolute to the death of the center of the earth is how it was construed at that time so that that sheds light on the fact that section four reflects that it was only an easement was granted because you would not need to have the subject to language at all if you were just adding the adjacent lions it is also well established that the department of tears interpretation of public land laws such as eight hundred seventy five act is intitled to great deference this is because public land laws provide for the acquisition of title which much much must be secure and beginning at eight hundred eighty eight and continuing through today the department of interior still construes eight hundred seventy five act as easements and they can still construe eight hundred seventy justice department here says something else and we have a president who's reconciles these two things must agree with one of the other well and i think under this court's precedent you defer to the agency in charge of section four which predated great in order to show that the united states retains the reversionary interest in the surface of the land of right of ways granted to where it's understood yang i have to say i think the government gets a prize  understatement with its brief in this case you have sons in your brief that says weak knowledge that there is language in this court's opinion in great northern and in the government's brief in that case that set lends some support to petitioners contrary argument here are the subject headings of the government's brief in great northern a right of way granted by the act of march three one thousand nine hundred seventy five is in the nature of an easement the language of the eight hundred seventy five act shows that only an easement was granted the legislative background and history of the eight hundred seventy five actually that the grant was of an easement rather than the fee subsequent administrative and congressional construction confirm that only an easement was granted i mean the first sentence of the summary of the argument there's also other portions of the brief i would refer the court for instance the footnote for where the court the government said there would be a separate question raised about holder subsequently who paints the pattern after the grand right of way would take this government interest and the court the government said in fact that would raise different questions the court recognized that on pages the last two pages of its opinion it specifically limited its judgment to situations where the government retained interest in the entire surrounding parcel and in fact modified the judgment below which enjoying the railroad from oil drilling simply to apply to the question before the court was whether the right of way which is a statutory term congress could have used easement could have used it did not use a special statutory term which is accumulated meaning over time in the reparati contest and in that context the court was deciding whether it was in the nature of an easement which is are subject headings that it's in the nature of an easement but that's a visa be the united states abbie alba di with respect to the mineral lands and in fact the shift kagan you were talking about is a shift about subsidies it was a shift of subsidy away from these lavish land grants and when congress was stopping that that lavish grant to rare it made no sense to construe the you said it was an easement the court said it was in these meant you persuaded the court to say it was an easement and now you're saying this is some kind of property right that has no name well it has really unknown to the law it's a right of way and in fact the government's brief also said that with respect and i'm quoting from page nine with respect to the surface control under any of the theories even under the easement theory which i don't believe is a true common law easement the railroads control of the surface was complete and then we went on further and this is on page six of the thirty seventh said it was a fact that the right of way has some of the attributes of a thief and those included exclusive in perpetual occupation and remedies are that i mean let me put it in so again if we were to rewrite our brief we would certainly do so much more carefully now but i think that the way that you read the brief is the way to read opinions which is in the context in which it was decided particularly because for and this court's opinion in stalker the court held that the subject to this is on page one fifty four a patent was subject to the rights acquired by approval that's the approval in section four in the subject to language in section fo and then they go on to say citing bachar that the later patent was inoperative to pass title and i think it's important in both of those cases the court sided to interiors regulations in stalker the court quoted at length the regulations for eight hundred eighty eight which although the court suggested that in northern this with the first regulations they actually warrant there were prior regulations in eight hundred seventy eight which discuss nothing about the nature of the fee and th unfortunately are hard to find there and sent executive document thirty forty fifty congress third session in seventy nine so but the regs that titian has now rely on were specifically referenced by the court including the  egs that say the disposition of the land surrounding the right it's subject to the right of way mr yang the petitioners say that there are thousands or even tens of thousands of people in their position to use dispute that we don't have good numbers actually on what are the numbers that you and look this is what i've thinking this is property law it's not just a question of trying to work out what the case could or couldn't have stood for but by trying to remember my property class  vaguely was which was a great class a james cows are real expert and he i think said that when you convey subject of divest the fee the something called season and therefore it could be a divestiture now whether that's true or not or i've misremembered it i go back to justice scalia's question is there a single example since the doomsday book since they don't the brockton on little to whatever it was i mean in the history of the common law up to the present we are a court has interpreted in ambiguous phrase which doesn't say to grant an for one purpose but not for the other there may be some but i didn't notice any cited in the government's brief i'm not sure that there would be any common law cases no i said in any way any case at all in this i mean content what is they don't have it in front of me i know that they are within my words that roughly in your brief we didn't refer to those oh all right well we might have cited the cases in our brief we didn't for that i'm not surprised that but the you think there are some i'll get look there are some but the point was they were trying to discuss the nature of a statutory right of way congress did not use the term did not use the term fee and so the court has been using common law terms which don't fit perfectly to describe certain can you imagine or explain to me why a property lawyer worth his salt since seventy years ago one thousand nine hundred forty two wouldn't have read that case and advised his client who was link right away which means you don't get any interest at least on the surface of the right of way so this those cases have never been over one to congress in one thousand nine hundred six and this is this isn't significant so that page  section one forty page seventy six eight and seventy of our brief congress said that each and every grant of right of way under this eight hundred seventy five act each and every one shall be declared forfeited if they hadn't been constructed and this is important the united states resumes the full title to the lands covered there by free in just charge from such heat dan a good compensation to the people who may pronounce that no i can't change the meaning of the eight hundred seventy five but it reflects congress understanding of what you eat reflects a later congress is understanding of what an earlier congress did we don't interpret statutes on the basis of what congress understood that the government had a reversionary interest mr yan can i take you back my question for thousands tens of thousands how many people are involved here how many acres of land again we don't know because the way that these things are disposed of there has not been a centralized way of tracking that it could be a significant amount because the eight hundred seventy five act rights of ways were at least in number the most numerous there were it's hard to know about mileage the courts are discussed which shows that whenever there's a forfeiture the united states interest reverts to first for roads and then to municipalities and if there was anything left it would go to a landowner that you but the but the the the problem that i see here is just what justice kagan is bringing up that is why as i read this i think there might be you know millions of acres in the last seventy years that have been conveyed for all i know  there's some right of way that goes to people's houses you know and all of a sudden they're going to be living in their house and and suddenly a bicycle will run through it which isn't so bad but but but i'm concerned about and your answer makes me more concerned  abandoned right of way by the united states to land that had previously been granted to a private owner the images were if of how often does it have again we don't have good numbers on how i know you don't have good what was but it can you give me a rough that's not correct because it needs to be qualified after after the great northern interior has concluded in amerada hess which we cited in our brief that the subsurface interests would go to the organ shortline case that we cite that led to this decision here there was just wasn't disputed why and why is interest why then did no one from the department of the interior joint join your brief they agree with our brief we don't know if they don't have a choice do they doubt we have been in close consultation with the department of interior and they signed off on this brief the agency that's at issue here is that actually agriculture because agriculture is the forest service which has the lands and i think some of the want more court's conflicting you know language if you if you take language in the abstract and you divorce it from the context of the case the court's decisions are conflicting but when you look at the context of the case you look at great northern as with respect to saying are reconciled we think by acknowledging the stalker and psyche control at least with respect to the surface interests and then with respect to the subsurface interest great northern clearly says that it least be the united states and the railroad where there is no third parties involved that is deemed to be like a road an easement that would not give a subsurface interest and there's little reason important reasons to distinguish between the subsurface and the surface with respect to rights of ways surfaces what's all for the right  suggesting that after great annoyance and then you're given this patent which is unequivocal and does not reserve anything why anybody would think that they hadn't gotten the whole ball of wax is a mystery well i think you would have to if you had a good lawyer the good lawyer would say look we've got this uncertainty here you've got stalker unspanked he was says you get no interest you have great northern which would doesn't address the interests that pass to third parties it only addresses the interest that the reading of the history here mr yang is that it really did and occurred to the government until very recently that these rights of way had value as anything other than railroad tracks and indeed that the government was anxiously trying to give these things away because  that the spaghetti strips of land it's of no use to the government here take them get them off our hands and and you know having done that for many many many decades the government faces a problem when it turns around and says you know what we forgot there are bike paths i don't think that's quite accurate it least since one nine hundred twenty two the government has disposed of congress i should say has directed the government to dispose of its reversionary interest first to subject to the right of way now of course you know congress is free to choose to change its decision about how to dispose of u s government interest or any government property there is no vested the when i read i thought your brief was very persuasive and then i read great northern and i thought they have they really quoting it correctly here's what they said about the cases that you refer to like springer the conclusion that the railroad was the owner of a limited feat which is the conclusion of those earlier cases was based on cases arising under the eight hundred seventy one act not the eight hundred seventy five back and the change of policy in eight hundred seventy five was what was not brought to the court's attention well say and then say that conclusion is inconsistent with the language of the eight hundred seventy five back its history and its early administrative interpretation we dare for do not regard this earlier case as controlling that was townson which was the we told the court that council was dictating towns and the dispute was by a railroad who got it to crete from the state court saying it had the right of way i thought they say in the string of cases at the same as now i'm sorry string yeah well that's the one you were no no  language in great northern which addressed a different question in which the government specifically reserve the question of what interest would transfer to a pad the court specifically limited decision so it wouldn't reach that issue and then rule two decisions by this court on the very statute decided thirty years earlier when the court was closer to the eight hundred seventy five act that would be a pretty remarkable thing i think and what we're saying is that no stalker and remain good law explained would not give as traditionally framed exclusive and perpetual up to occupation to the railroad it would not give the remedy of the feet all those are very practical real right the fact that it has some of the attributes of a theory including exclusive a perpetual occupation in the remedies of a feat and nobody's been doesn't take it out of the box of what we're talking about that case and so again i think you need to read in context i agree that if you just take great northern and look at it without peeling back the hood a little bit this language that you know would lead us that's basically my problem i guess you just don't have any great northern it comes along the justice pariente think it's a mistake to rely on these labels of limited and easement too strongly that's what this courts basically said in union pacific in one nine hundred fifty seven and union pacific the court said look these previous seventy one cases used the term limited fee but really we're not going to see that to be controlling with respect to the mineral rights and the court is doing exactly what we're saying should be done here which is you understand the right of way in the context of the statutory tax in the context of the environment surrounding statutory environment important in the context of this court's decisions and it's not a binary black or white choice between you know common law terms congress didn't use those common law terms congress used the term right of way it used the same text that it did in prior grants of rights of way and all we're trying to say is that there are really important interests here it's not practically feasible to ever reconstruct these arteries through the lands and they were important when congress granted them to develop the lands eight hundred seventy five and they remain important today as congress is now repeatedly recognized in terms of granting public roads so do we know how many miles of public roads and how many miles trail that in this case the government used its property interest through the national forest as well as through this parcel for like a twenty two mile trail there are probably thousands of miles of trail that are would be affected and importantly there's a lot of interest going forward that would be affected when the law again and the law of one thousand nine hundred twenty two was that the congress would reserve the united states interest for roads and municipalities that was a significant in their highways that would be effective i mean we rule for the brands are there is suddenly going to be highways that killed and certainly my ways any market certainly would call into question the like galatea of the way it transfers and i'm sure that could be something that could be litigated there would be issues i'm sure defenses raised by the states and municipalities but what the court would be saying is that for since one thousand twenty two in this policy continues now that the highways that have been created under eight hundred seventy five act would be invalid and you think of anything i can do about this  it's a case to my in my mind at least we're reliance interests on a on a previous case in the property law area are important and yet none of the briefs here really gives me a reasonably concrete idea of how much reliance there's been and on and so on but i'm somewhat in the dark you know it's difficult to know because again these are kind of ad hoc things and there's an abandonment there might be proceedings but there's been we've not been able to obtain centralized reliable information on the total number because this goes back a pretty long way we're talking about again starting in one nine hundred twenty two you know this is been unchallenged until we got to district court decisions eighty in the mid eight with respect to the surface now and on the subsurface great northern has continued to be applied by interior and that's been treated differently and i think it's important also to remember that the regulations not only were they cited by this all that was a minimum lactase and the court also the interior also said that because you can't separate the states or there's no reason to separate the surface from the subsurface the minimal couldn't be transferred either that's been overtaken by  the there would be no interest given to patent teas of the land after a right of way is granted under section four of the act maybe the reason you don't have records on this which strikes me as pretty and unusual that the government doesn't know what it owns is policy changed to fit in to prioritize highways and then the us has interests after that so it's understandable why we haven't been intimately involved with all these forfeitures that have occurred over time congress directed how the united interest should be disposed of order are takings claims all that would be any eight hundred seventy five act case a right of way which has been abandoned which is then put to another use whether it be a highway under the current section nine twelve or whether it reverts to the united states or even if for instance it doesn't revert to united there any statute of limitations with all of this be subject to the a p a or or  well for local roads i mean these this new this is the idea that these these rights of ways would go to states and localities not federal highways that's that section one twelve speak you should say should you know how much land the united states alludes it's incredible that that there's no record in the interior department or anywhere else of what land the united states owns you claim you move these thousands of acres and you say we've not got kept track of it we just know where it's going to go but we don't know what we'll do there are some records that you can get from archives of with respect to specific things but it's not centralized we don't have a way of ever getting what has happened over the last nineteen years that's the right stanky was written by justice banda banner who also wrote string and which great northern overturned that's why stalker and stanky fell out of use over the years and if stalker and stanky weren't so important the government should have brought those cases to the court's attention in great northern but it did it with respect to the one nine hundred thirty one land decision the government just brought up i refer the court to solicitor's opinion yes it would be the private parties that would have brought it up and greater than when that and you have any like to shed on the comparative amounts i mean they're saying again for all we know there are billions of dollars worth of takings claims that will come up with where the where the highways right and you're arguing of course any reasonable property lawyer would have relied on great northern to think it was just conveying an easement you know i'm not a property lawyer and  possibility that millions of acres has been conveyed and there are a lot millie tens of thousands or hundreds of thousands of abandoned railroad the popular lawyers thought went to the person who bought them and brought run through somebod house i mean is that a figment of my imagination and you know saying no it isn't and and therefore i'm asking you is there any empirical support anywhere for how property lawyers in treated great norther how how how much was conveyed etc anything you can say on that would be help i have nothing to say about the quantity but i know that s g as the seven circle ruled in s c johnson that the title insurance thought that was a landmark decision because it resolved a lot of problems with the title insurance industry each mile of the of the right of way takes up twenty four acres they want point there  i want to also a dress the forfeit your provision that they mention the great northern relied on its section forty three nine forty to confirm its conclusion that the yes indeed these are easements because this is forty three u s c nine forty it's to the exclusion of all other uses it's it looks for all purposes like absolute control that it ceases to be an easement and becomes a limited fee and is there some magic that that thank you thank you counsel the case is submitted