Federal Railroad Rights of Way
Released: 2006-05-03T00:00:00

Introduction

Congress facilitated the development of railroads, especially railroads in the West, throughvarious forms of federal assistance. Primary among this assistance was the granting of rights of wayacross the public lands. Not all of these grants were the same, but some arguably contemplated aretained interest in the United States. As the continued operation of certain railways became lesspracticable and portions of rail lines were sold or closed, attention increasingly turned to title issuesand the nature and scope of the authority of Congress to dispose of rail corridors. This reportdiscusses the history of the federal railroad rights of way grants, the various forms such grants havetaken, and the provisions Congress has enacted to govern disposition of railroad rights of way. Thisreport will be updated as circumstances warrant.

Background

The middle of the nineteenth century witnessed a burst of federal legislation fostering theconstruction of railroads in America. (1) Many factors contributed to this legislative initiative, among themthe discovery of gold in California, the American civil war, the absence after secession of opposingvotes by southern states, and a desire to encourage the settlement and development of the vast newwestern territories, thereby increasing tax revenues, opening markets, and providing more adequatelyfor the defense of the West. It was also felt that transcontinental rail lines could not be built withoutsubstantial Federal assistance. The grants sometimes consisted only of a right of way across publiclands, but sometimes also included a greater subsidy in the form of additional grants of land,financial support, or both. Some land grants were made to states to be conveyed by them to arailroad company upon completion of specified segments of line. Other grants were made to railroadcorporations directly. Usually this latter course was followed if the route was to cross territoriesrather than states. Typically, in this latter instance, a federally chartered corporation was created bythe same legislation that established the land grants.

Several transcontinental railroads were authorized in a ten-year period, including the UnionPacific/Central Pacific in 1862 and 1864, (2) the Northern Pacific in 1864, (3) the Atlantic and Pacific in1866, (4) and the TexasPacific in 1871. (5) Theterms of grants varied, but all of these railroads received a right of way and additional land grants. These lands were typically granted in a "checkerboard" layout -- blocks of railroad lands alternatedwith government-retained lands -- with the intent that the railroads would sell their lands to settlersto finance the railroad, and the presence of the railroad would make the retained government landsmore valuable. Other, non-transcontinental railroads also received federal grants to begin operation.

By the time the fourth transcontinental line was authorized in 1871, vehement opposition wasdeveloping to the railroads that only a few short years before had received enthusiastic support. Asone historian put it, when the West "saw evidence that railroads were not prompt in bringing theirlands on the market and putting them into the hands of farm makers, the West turned from warmfriendship to outright hostility to railroads." (6)

This hostility was reflected in a cessation of congressional land grants to railroads. (7) Congress did, however, wishto continue to encourage the expansion of railroads across the western lands. Special acts continuedto be passed that granted a right of way through the public lands of the United States to designatedrailroads, but this piecemeal approach was burdensome. In 1875, Congress enacted a statute knownas the "General Railway Right of Way Act (GRRWA)," (8) that granted a right of way two hundred feet wide across publiclands and, as codified at 43 U.S.C. Â§ 934, states in pertinent part:

The right of way through the public lands of the UnitedStates is granted to any railroad company duly organized under the laws of any State or Territory,except the District of Columbia, or by the Congress of the United States, which shall have filed withthe Secretary of the Interior a copy of its articles of incorporation, and due proofs of its organizationunder the same, to the extent of one hundred feet on each side of the central line of said road; alsothe right to take, from the public lands adjacent to the line of said road, material, earth, stone, andtimber necessary for the construction of said railroad; also ground adjacent to such right of way forstation buildings, depots, machine stops, side tracks, turnouts, and water stations, not to exceed inamount twenty acres for each station, to the extent of one station for each ten miles of itsroad.

At times, railroads also acquired some rights through the exercise of state power of eminentdomain and through the exercise of federal power of eminent domain. In addition, some rights ofway were simply purchased by the railroads from non-federal owners. In the latter instance, therailroad obviously could hold full title to the right of way lands and the federal government none. By contrast, in those instances in which the right of way was obtained by an exercise of the federalpower of eminent domain, one would have to examine the particular authority for that exercise andalso the particular condemnation proceedings to determine the scope and conditions of the title therailroad obtained.

This report does not address privately-owned railroad rights of way but discusses railroadrights of way granted by the federal government, either as part of a land grant or under the 1875 rightof way statute.

Legal Nature of "Rights of Way"

The courts have interpreted the right of way interests conveyed to railroads in various ways,and it has become increasingly difficult to reconcile the sequence of congressional enactments andjudicial holdings into a coherent body of law. A complete review of the extensive enactments,litigation, and interpretations is beyond the scope of this report, but some of the principal cases andissues are set out.

The Supreme Court has said that a pre-1871 right of way granted to a land grant railroad wasa "limited fee," (9) while theright of way granted under the 1875 statute was an easement. (10) More recent cases seemto indicate that the terminology may not be of vital importance; the significance of the terms useddepends on the context in which an inquiry arises. (11) However, the "rail banking" provisions of the Rails to Trails Act(discussed below) have again resulted in a focus on the exact nature of the right of way interest andthe authority of Congress over rail corridors. To encourage settlement of the West, Congress notonly enacted railroad rights of way grants but also statutes that authorized the conveyance of landsto private citizens. The railroads crossed these lands and whether the "banking" of the rail corridorsonce trains no longer operate results in a taking of private property for which compensation is owedunder the 5th Amendment to the Constitution has been addressed in several recent cases discussedlater in this report.

A review of property law terms may be helpful. Usually when land is granted to anotherowner, the conveyance is complete and final. If the interest conveyed is complete and includes allrights associated with the property, it is a "fee simple." It is possible, however, to convey less thanall property rights, or to convey title to a grantee so that title may revert to the grantor in somecircumstances. If the interest conveyed is only the right to use the land of another for a particularpurpose (such as the right to cross the land of another), the interest is an easement. There can be agradation of interests between fee title and an easement depending on the exclusivity of possessiongranted, the duration of the interest granted, and the completeness of the rights granted. A right ofway interest may be structured and conveyed in such a manner that the grantor retains a"reversionary" interest in the property, which means that the property may in some circumstancesrevert to the grantor.

A fee grant may be made so that it continues only so long as some use or circumstancecontinues, and if that use or circumstance ceases, then title reverts automatically to the grantor. Thisis called a determinable grant. Or a fee grant may be interpreted as being made on the condition thatif "x" occurs, then the grantor may reenter the property, and title may revert to the grantor. This iscalled a grant on a condition subsequent. Both of these could be characterized as "limited fees,"since they are less than full fee title.

The principal difference between these two types of grants is that in the former instance, noaction on the part of the grantor is necessary to reassert title; title reverts by action of law as soon asthe envisioned use or circumstance ceases. In contrast, if the grant is deemed to be a grant on acondition subsequent, the grantor must take some action to reassert title upon the breach (orfulfillment) of the condition (depending on whether the grant and condition were worded positivelyor negatively). This action usually takes the form of a judicial proceeding to determine that the termsof the condition have in fact been met or breached.

If the right of way is a mere easement, at common law when the easement use ceases, theeasement simply disappears and the "servient" estate -- the land burdened by the easement -- nolonger is so burdened. (Therefore, it usually is not technically correct to speak of a "reversionaryinterest" in connection with a common law easement.)

However, Art. IV, Â§ 3, cl. 2 of the Constitution gives Congress the "Power to dispose of andmake all needful Rules and Regulations respecting the Territory or other Property belonging to theUnited States." When Congress grants a property interest, the grant is both a grant of property anda law and Congress is free to specify terms or elements different from those that otherwise wouldapply either by virtue of the common law or in other statutes. This fact seems to have been lost insome of the discussions of congressional railroad grants. A railroad grant may also be both a grantof a property interest and a contractual agreement between the federal government and therailroad. (12)

One of the earlier cases in which the Supreme Court considered the title taken by a land-grantrailroad was Schulenberg v. Harriman in 1874, in which the Court said: "A legislative grant operatesas a law as well as a transfer of the property, and has such force as the intent of the legislaturerequires." (13) Considering all the conditions and provisos that in the legislation granted lands to the railroad inquestion, the court found the interests granted to the railroad to be a fee on condition, and that breachcould only be asserted by the government as grantor. In this respect, the Court clearly distinguishedbetween what could happen at common law where the two private parties were involved from thesecongressionally created property interests where one party was the sovereign government and mustenforce the terms of the property grant either by judicial proceedings or by legislative assertion thatwas the equivalent -- "the mode of asserting or of resuming the forfeited grant is subject to thelegislative authority of the government." (14)

Another early case interpreted a land grant railroad right of way as a limited fee, made on animplied condition of reverter in the event that the company ceased to use the land for railroadpurposes. (15) In thiscase, the Court also said: "No express provision for a forfeiture was required to fix the rights of theGovernment. If an estate be granted upon a condition subsequent, no express words of forfeiture orreinvestiture of title are necessary to authorize the grantor to reenter in case of a breach of suchconditions." (16) It isimportant to note that this case involved private persons who had been patented lands over whichthe train tracks ran, and the Court voided those patents on the ground that they could not convey theblock of lands they purported to convey due to the fact that the railroad held limited fee title to theright of way strip of land.

In 1875, Congress approved the general railroad right of way grant (GRRWA) using the samelanguage as in some of the land-grant rights of way grants: "The right of way through the publiclands of the United States is hereby granted to any railroad company ...." (17) The Supreme Court heldin Great Northern Railway Co. v. United States that this language clearly granted only a surfaceeasement rather than the strip of land right of way. (18) In reaching this conclusion, the Court looked to other languageof GRRWA, to administrative interpretations, and to subsequent enactments by Congress thatreferred to the "easements" given by the 1875 Act. The Court pointed to Â§ 4 of the Act as especiallypersuasive in that it states that once each right of way is noted on plats in the local land office,"thereafter all such lands over which such right of way shall pass shall be disposed of subject to theright of way. " (Emphasis added.) "Apter words to indicate the intent to convey an easement wouldbe difficult to find." (19) As will be discussed, however, it is possible that Congress did not intend by this language torelinquish its authority over the ultimate disposition of the rail corridor.

The Great Northern case illustrates the mixture of facts and terminology that rendersharmonizing the various judicial holdings difficult. In Great Northern , the United States sued toenjoin the plaintiff Railway Company from drilling for oil and gas beneath an 1875 right of way. The railroad owned the adjacent lands and hence at common law could have been the owner ofunderlying estate. No evidence of title in the United States was introduced; but the court allowedthe parties to stipulate that "the United States has retained title to certain tracts of land over whichpetitioner's right of way passes ...." (20) This stipulation avoided a resolution of issues involving thepossible rights of adjacent landowners or the nature of possible retained authority of Congress.

In another case in which the government sued to enjoin a railroad company from drilling foroil and gas on the land-grant right of way granted it by the government, the Supreme Court ruled thatthe right of way grant did not include mineral rights because of other language in the Act thatexcepted out mineral lands -- language the Court held applied to the entire statute and not just togrants of lands. (21) Inreviewing the "limited fee" cases, the Court said that the most such cases decided was that "therailroads received all surface rights to the right of way and all rights incident to a use for railroadpurposes." This case has sometimes been regarded as holding that even land-grant rights of waywere merely easements, but in fact the Court held only that the grant did not give the mineral rightsto the owner of the right of way because nothing passed except what was conveyed in clear language;the grants were construed favorably to the government with doubts resolved in favor of thegovernment; and oil and gas development was not within the railroad purposes of the right of way. Nevertheless, the Supreme Court did strongly suggest that all railroad rights of way were easements.

Although the courts have struggled at times to articulate the nature and scope of the interestheld by a railroad, the cases are clear that the right of way interest, whether limited fee or easement,is conditioned on the continued use of the right of way for railroad purposes, although that phrasemay be broadly construed. (22)

Conveyances by the Railroads

Congress has authorized the railroads to convey part of their rights of way for highwaypurposes. In 1920, Congress authorized railroads to convey to state, counties, or municipalities,portions of rights of way to be used as public highways or streets provided the conveyance wouldnot diminish the railroad right of way to less than 100 feet. As codified at 43 U.S.C. 913, thisprovision reads:

Â§ 913 Conveyance by land-grant railroads ofportions of rights-of-way to State, county, or municipality

All railroad companies to which grants for rights of waythrough the public lands have been made by Congress, or their successors in interest or assigns, areauthorized to convey to any State, county, or municipality any portion of such right of way to be usedas a public highway or street: Provided , That no such conveyance shall have the effect to diminishthe right of way of such railroad company to a less width than 50 feet on each side of the center ofthe main track of the railroad as now established and maintained. (23)

Section 16 of the Federal Highway Act of 1921 (24) gave the consent of the United States to any railroad or canalcompany conveyance to the highway department of any state "any part of its right of way or otherproperty in that State acquired by grant from the United States." Note that this provision did notmention the necessity for retaining the central right of way, and the legislative history offers noclarification on the point. The Federal Highway Act included language stating "all acts or parts ofacts in any way inconsistent with the provisions of this act are hereby repealed ...," and courts thathave addressed the issue have found that the 1921 enactment amended Â§ 913, eliminating therequirement that the retained central core be 100 feet in width. (25) It is arguable, however,that because the railroad is only authorized to convey "property acquired" from the United States,neither a full fee title nor any retained interest of the United States could be conveyed. Under suchreasoning, the railroad must continue to use the right of way for railroad purposes or, if that useceased, the railroad could not convey the central core. In addition, if the railroad were legallyabandoned, the public highway exception in section 912 would still allow one year for anyabandoned portion of a right of way to be "embraced in a public highway." (26)

Controversies have arisen as to the authority of the railroads to convey all or part of theirinterest in the rights of way aside from the highway context, and as to the authority of private citizensto obtain rights to property within the rights of way through adverse possession -- what might becharacterized as "squatter's rights."

The Supreme Court interpreted the grant of a federal right of way as a unit, no portion ofwhich could be obtained for private purposes by adverse possession.

By granting a right of way four hundred feet in width,Congress must be understood to have conclusively determined that a strip of that width wasnecessary for a public work of such importance, and it was not competent for a court, in the suit ofa private party, to adjudge that only twenty-five feet thereof were occupied for railroad purposes inthe face of the grant .... (27)

Similarly, the court has held that the right of way purposes would be negated by the existenceof the power of the railroad to alienate the right of way or any portion of it. (28)

Despite the limitations on the alienability of federal rights of way, the railroads still purportedto convey, and adjacent landowners continued to encroach upon, rights of way and claim rightsthereto. Over the years, Congress has repeatedly legislated to legitimize particular conveyances andactivities to alleviate the hardships to innocent purchasers. (29) In doing so, Congress hasconsistently asserted that Congress, not the railroads, had the authority to dispose of rail corridors. Many of the validation statutes involved land-grant railroad rights of way, which Congressrepeatedly characterized as limited fee grants with a reversionary interest in the federalgovernment. (30) Subsequent statutes interpreting and declaring the intent of earlier statutes are entitled to be givengreat weight in statutory construction. (31) In this context, Congress has enacted statutes for more than acentury that in text or committee reports refer to the reversionary interest of the United States, a pointthat will be discussed further below. A review of these enactments may shed light on the issues,although this consistent view of Congress that a residual interest remains in the United States hasnot figured prominently in judicial decisions thus far.

Congressional Disposition of Underlying Federal Interests

Congress legislated specially to provide for the final disposition of particular rights of wayno longer being used for railroad purposes, and in 1922 also enacted a general statute. (32) As codified at 43 U.S.C.Â§ 912, the 1922 statute provides that upon forfeiture or abandonment, the lands granted to anyrailroad company for use as a right of way for its railroad etc. would pass to a municipality if theright of way passed through one, or to adjacent landowners, except that a highway could beestablished within the right of way within one year after the date of a forfeiture or abandonment. Theprovisions state:

Whenever public lands of the United States have beenor may be granted to any railroad company for use as a right of way for its railroad or as sites forrailroad structures of any kind, and use and occupancy of said lands for such purposes has ceasedor shall hereafter cease, whether by forfeiture or by abandonment by said railroad company declaredor decreed by a court of competent jurisdiction or by Act of Congress, then and thereupon all right,title, interest, and estate of the United States in said lands shall, except such part thereof as may beembraced in a public highway legally established within one year after the date of said decree orforfeiture or abandonment[,] be transferred to and vested in any person, firm, or corporation, assigns,or successors in title and interest to whom or to which title of the United States may have been ormay be granted, conveying or purporting to convey the whole of the legal subdivision or subdivisionstraversed or occupied by such railroad or railroad structures of any kind as aforesaid, except landswithin a municipality the title to which, upon forfeiture or abandonment, as herein provided, shallvest in such municipality, and this by virtue of the patent thereto and without the necessity of anyother or further conveyance or assurance of any kind or nature whatsoever: Provided , That thissection shall not affect conveyances made by any railroad company of portions of its right of wayif such conveyance be among those which have been or may after March 8, 1922, and before suchforfeiture or abandonment be validated and confirmed by any Act of Congress; nor shall this sectionaffect any public highway on said right of way on March 8, 1922: Provided further , That the transferof such lands shall be subject to and contain reservations in favor of the United States of all oil, gas,and other minerals in the land so transferred and conveyed, with the right to prospect for, mine andremove same.

Note that this statute begins by referring to grants of lands for railroad rights of way, and atleast two fundamental elements of section 912 remain integral to disposition of railroad rights of way-- the concept of abandonment and the public highway exception.

Under section 912, as amended, certain rights vest upon abandonment. (33) A finding of abandonmentmust also be declared by a court of competent jurisdiction or by an act of Congress. (34) What constitutesabandonment remains, however, somewhat uncertain. The relevant statutes do not defineabandonment, and no single court decision has definitively resolved the question. Likewise, thecongressional debate on the statute was limited and does not provide clarification of the intendedmeaning. (35) The courtsthat have addressed the abandonment requirement have often looked to common law principles ininterpreting the term. A particularly influential case has read Â§ 912 to require a present intent toabandon as well as physical abandonment, evidenced by the cessation of tax payments related to theproperty, discontinuation of service and other railroad-related use, and removal of tracks. (36) Additional requirements,however, vary from circuit to circuit. The major point of dissension appears to be the status ofabandonment determinations by the Interstate Commerce Commission ("ICC") or, for cases arisingafter the termination of the ICC, by the Surface Transportation Board ("STB"). (37) The Tenth Circuit hasconsistently found such a determination a prerequisite to abandonment. (38) However, in the NinthCircuit, an ICC or STB determination of abandonment may not always be necessary. As stated in Vieux v. East Bay Regional Park District , "a railroad could abandon without any involvement fromthe I.C.C., if there is no injunctive action brought [by the I.C.C., the U.S. or state government] andif a court decrees that the railroad has abandoned the line. The I.C.C. regulation and processdetermine what effects an abandonment will have and what the railroad must do to counteract thoseeffects before it abandons, but they do not determine that an abandonment has actuallyoccurred." (39)

Section 912 also established a public highway exception. A state or local agency has theright to include portions of any railroad right of way in a public highway within one year of its legalabandonment, thus eliminating other title claims. (40) The relevant committee report indicates:

It seemed to the committee that such abandoned orforfeited strips are of little or no value to the Government and that in case of lands in ruralcommunities they ought in justice to become the property of the person to whom the whole of thelegal subdivision had been granted or his successor in interest. Granting such relief in reality giveshim only the land covered by the original patent. The attention of the committee was called,however, to the fact that in some cases highways have been established on abandoned rights of waysor that it might be desirable to establish highways on such as may be abandoned in the future. Recognizing the public interest in the establishment of roads, your committee safeguarded suchrights by suggesting the amendments above referred to protecting not only roads now established butgiving the public authorities one year's time after a decree of forfeiture or abandonment to establisha public highway upon any part of such right of way. (41)

Two cases have held that the United States retained a reversionary interest in railroad rightsof way, including those established after 1871 (i.e. non-land grant railroad rights of way), and thatthe adjacent landowners had non-vested reversionary rights that were cut off when recreational trailuses were properly established as public highways under state law within the one-year publichighway exception set out in Â§Â§ 912 and 913. (42)

The 1922 Act and the report language explaining it reveal an important point that arguablyhas not received adequate attention. Clearly, Congress believed that it had retained the authority toprovide for the disposition of railroad rights of way, whether because Congress continued to holdsome traditional property interest, such as a reversionary interest (note the reference to Congress'understanding that the rights of way were "strips" of land), or because its retained authority over thetermination of the rights granted was an element of the property interests granted . If the railroadrights of way exactly paralleled some common law property interest such as an easement, how canCongress make an alternative disposition of the underlying lands other than that which wouldotherwise apply at common law? The one-year window within which highways could be establishedin an abandoned rail corridor only makes sense if Congress retained the authority to deviate fromcommon law property rights with respect to termination of the grants. Recalling that the railroadgrants were both grants of a property interest and a law, the argument could be made that Congressintended as a matter of law to retain authority over the termination of the property rights granted. Arguably, this principle has been embodied in the enactments of Congress for more than a centurythat provided for the disposition of the rights of way. The importance of this question has beenhighlighted by recent cases involving the Rails to Trails litigation.

"Rails to Trails"

Congress has established a National Trails System to designate and manage a system ofnational trails. Amendments in 1983 (43) and 1988 (44) authorized the banking of railroad rights of wayto preserve themfor possible future railroad use and to allow interim use of the rights of way corridors for recreation. As indicated in the legislative history, Congress intended the trails system to increase recreationalopportunities, conserve natural resources, and, through the "Rails to Trails" provisions, preserverapidly diminishing rail corridors for possible future railroad use. (45) Specifically, the Rails toTrails provisions were enacted to deal with the problem of state property laws providing for theexpiration of easements upon abandonment. (46) As codified at 16 U.S.C. Â§ 1247(d), Congress provided railroadswishing to discontinue service on a particular route an opportunity to negotiate with state, municipal,or private entities who were prepared to assume responsibility for conversion and management ofthe rail corridor as a trail. (47) If the negotiations were successful, the right of way would notbe deemed abandoned; rather it was considered to be under an "interim use," with the possibility thatrail service could be reinitiated in the future. (48) By avoiding final abandonment status, the railroad right of waydid not pass under applicable state law or 43 U.S.C. Â§ 912.

The 1988 amendment (16 U.S.C. Â§ 1248(c)) provides for the retention by the federalgovernment of any and all federal interests in railroad rights of way. (49) The statute provides

Commencing on October 4, 1988, any and all right, title,interest, and estate of the United States in all rights-of way of the type described in the Act of March8, 1922 (43 U.S.C. 912), shall remain in the United States upon the abandonment or forfeiture ofsuch rights-of way, or portions thereof, except to the extent that any such right-of way, or portionthereof, is embraced within a public highway no later than one year after a determination ofabandonment or forfeiture, as provided under such Act. (50)

Section 1248(c) thus significantly changes the disposition of federal interests involved infederally-granted rail corridors over which trains no longer run, causing all interests to be retainedby the United States rather than passing to adjacent landowners or municipalities. By its ownlanguage, section 1248(c) confirms the continuing force of the 1922 Act, specifically reinforcing thecontinued vitality of Â§912 public highway exception. Accordingly, courts have continued torecognize Â§912 in so far as it does not conflict with section 1248(c). (51)

5th Amendment Takings Cases

After the enactment of Rails to Trails, cases examined whether the retention of non-operatingrailroad rights of way for use as recreational trails constitutes a taking entitling the landowners to justcompensation under the 5th Amendment to the Constitution. With respect to some privately grantedrights of way, the Supreme Court in Preseault held that the law was constitutional because the"Tucker Act" (52) provided an avenue to obtain compensation if any were owed. (53) A subsequent caseinvolving the same plaintiffs held that a compensable taking had occurred, but that not every exerciseof authority by the United States under the Rails to Trails Act would necessarily result incompensable takings. The Preseault cases involved private fee-title landowners whose predecessorshad sold an easement for railroad purposes to a railroad. Ultimately, the Court of Appeals for theFederal Circuit decided that use of the right of way for recreational purposes was beyond the scopeof the easement granted and agreed to by the private parties, and hence the use of the corridor forthose purposes constituted a taking. (54)

With respect to federal rights of way, early decisions after the 1988 statutory changeconcluded that, despite the absence of an explicit reservation of interest, the federal government didretain an implied interest when it patented (conveyed title to) lands crossed by federal railroadeasements into private ownership, such that the retention of the rights of way for interim use as trailswas not a taking, when a public highway was established under state law. (55) More recent cases haveheld the opposite. (56) There has not yet been a Supreme Court ruling in the federal right of way context.

In the Hash case, (57) landowners brought a class action challenging a conversion ofa railroad right of way across their lands to a recreational trail. The federal district court for Idahofound no taking and plaintiffs appealed. The lower-court decision was vacated and remanded in lightof an Idaho Supreme Court decision. The right of way in question was granted under the 1875GRRWA, and the landowners argued that under the reasoning of Preseault , the application of theTrails Act after abandonment of railway use prevented the railroad easement from reverting to theowners of the servient estate and entitled them to compensation. This claim required the court toascertain whether the federal right of way was an easement and the claimant landowners owned theunderlying estate, or whether the underlying estate never left ownership by the United States, orwhether the estate was deeded in fee to the railroad. There were various categories of landowners,but for purposes of this report, we shall address only those who obtained title to their lands from thefederal government after the establishment of the railroad right of way, thereby raising the questionof what Â§ 4 of the GRRWA means when it states that subsequent land owners take "subject to" theright of way.

The court in Hash noted the previous cases that had held that the 1875 statute granted onlyeasements, and further noted that the United States had failed to expressly reserve any interest toitself when conveying lands to homesteaders, except that settlers took lands "subject to" the railroadright of way. "We have been directed to no suggestion, in any land patent, deed, statute, regulation,or legislative history, that can reasonably be construed to mean that the United States silentlyretained the fee to the land traversed by the right-of-way, when the United States granted that landto homesteaders." (58) Similarly, the court did not find that language directing the railroads to share their rights of way withhighways under either 43 U.S.C. Â§ 912 or Â§ 913 mandated the conclusion that the United States hadretained the fee to the land underlying the right of way after land patents including that land weregranted to private persons. Similarly, the court found that Â§ 913 (that authorizes highways withinthe right of way for up to a year after abandonment) does not weaken the position of the landownersbecause it required that the rights of the United States be conveyed to the private owner. However,this reasoning arguably does not adequately take into account the fact that if the United States couldvalidly legislate regarding the one-year window for the establishment of the highways, Congressmust have had some interest in the right of way. As discussed above with respect to the statutesvalidating railroad right of way conveyances, Congress has repeatedly enacted statutes premised onsome legislative or proprietary interest over termination of the rights of way.

Similarly, the court stated that the statute requires the United States to convey any rights ithas in the right of way, and that the statute does not indicate what rights the United States had. However, the statute actually directs that all right, title, and interest of the United States beconveyed, except for highways within the year after abandonment. "All" is not an equivocal wordas "any" is, and arguably may indicate that Congress believed there was such right or interest heldby the United States.

The Beres case also involved an 1875 right of way, and the Court of Federal Claims held thatthe right of way granted only an easement, so that when the right of way was no longer used forrailroad purposes, the easement was lifted and no property interest reverted to the United States. When the underlying lands were patented, the court held, the government gave up all its interest inthe land, including any reversionary interest. This case again did not take into account the years ofenactments by Congress premised upon some retained interest or authority over the rights of way,nor the language of Â§ 913 that on its face makes a disposition different from that which wouldpertain if the right of way were an easement at common law.

The government in Beres again argued that the United States had retained some interest inthe railroad rights of way, quoting from Whipps Land & Cattle Co. v. Level 3 Communications, LLC in which the Nebraska Supreme Court stated that, "while the vocabulary of the common law of realproperty is often imported into the discussion of railroad rights-of-way, where those rights-of-wayhave been created by federal law, they are entirely creatures of federal statute, and their scope andduration are determined, not by common law principles, but by the relevant statutoryprovisions." (59) Thegovernment argued that even if the 1875 Act were an easement, Congress in the 1922 Act hadaffirmed its understanding that the United States had a reversionary interest in the rights of way evenwhere the whole of the land traversed had subsequently been patented.

However, the discussion by both the government attorneys and the court devolved into anattempt to fit the various congressional actions into some traditional property interest. The courtstated the issue as being "whether the 1988 legislation can have retroactive effect on the transfer ofland rights which occurred years earlier...." The 1875 Act appeared to the court to have"intentionally omitted any words to create a reversionary right in the United States in grants ofrailroad rights of way, especially in light of the clarifying legislation in the 1922 Act, whichspecifically addressed the issue."

An argument can be made that all elements of the court's reasoning miss the mark in that what land rights might have been transferred years earlier is part of the question; it is possible thatthe 1875 Act did not need to expressly create a reversionary right in the United States; and the 1922Act itself arguably reflects Congress' continuing belief that it had the power to dispose of part of theright of way in a manner different from what would pertain at common law. (60)

Under Art. IV, Â§ 3 of the Constitution, Congress has the authority to

dispose of and make all needful Rules and Regulationsrespecting the Territory or other Property belonging to the United States....

Perhaps an avenue by which the enactments to date can be reconciled is the possibility thatCongress' actions were premised on its authority to legislate regarding the ultimate disposal of therights of way, and that this continuing authority over termination and disposition was an intrinsic partof both the railroad rights of way and the land titles homesteaders and others received when title waspatented "subject to the right of way." This retention of disposal authority makes sense of Congress'repeated and consistent enactments and accompanying committee reports regarding its "reversionaryinterest" in the rights of way. Perhaps Congress was using that term to indicate its reserved authorityto articulate the disposition of the rights of way upon termination of rail service. As one court saidwhen commenting on Congress' imprecise choice of words regarding another aspect of railroad landgrants: "[y]et it will not do for us to tell the Congress 'We see what you were driving at but you didnot use choice words to describe your purpose.'" (61) Perhaps many of the recurring difficulties could be resolved ifthe courts focused less on contradictory property/title words and more on the intent of Congressevident from decades of congressional enactments, including the 1922 Act, premised on Congress'continuing authority to specify disposition of terminating federal rights of way.

There is analogous precedent for this approach in the "navigational servitude" context inwhich the government may sometimes take private property without compensation being owed underthe 5th Amendment. Over the years, the rationale for this result has been articulated either as annavigational easement of some sort implicitly reserved to the government -- i.e. a property interest-- or as a constitutional authority of the government that is always a part of all property conveyances,and hence no compensation is owed when it is exercised within the constitutional parameters. Therule of no compensation derives from the fact that the property damage "results from the lawfulexercise of a power to which the property has always been subject." (62) Most recently, this conceptmight be worded that the power of the government to take property for navigation purposes is abackground principle applicable to all title, and hence no compensation is owed because the ownernever had a property interest not subject to that limiting background principle of property law. (63)

Similarly, the argument can be made that because Congress has the plenary power under Art.IV of the Constitution to provide for the regulation and disposal of the property of the United States,the power to control the ultimate disposal of federal rights of way was a part of the right of way titlethe railroads took and of the title homesteaders received to lands "subject to" the railroad right ofway. Arguably, if Congress made an alternative disposition of the lands before the conditions weremet that would have fully vested private title under the 1922 Act, no compensation would be owed.

Congress could of course give up this authority, but arguably it must be clear that it has doneso. Again, in the context of the navigational servitude such a waiver "will not be implied, but insteadmust be surrendered in unmistakable terms, (64) and conferral by Congress of title to a streambed does not,without more, waive applicability of the navigational servitude. (65)

Whether the courts will consider such an argument, of course, is not yet clear. However, thecases to date do not seem to have adequately taken into account the numerous enactments byCongress over the last 100 years, in which Congress has legislated regarding disposition of federalrailroad rights of way.

Conclusion

The legal status of land within any particular right of way depends on the interest held by arailroad or landowner, the general and particular applicable statutes, and the facts of a particularsequence of conveyances. Although Congress has on many occasions addressed the disposition ofrailroad rights of way, controversies may be expected to continue to arise because of issues as to thenature and scope of Congress' authority over the rights of way; the nature and scope of the interestof the railroad, the validity of attempts by the railroad to convey all or part of that interest,ambiguities associated with dating abandonment, disputes between adjacent landowners overperceived entitlements to lands within a right of way, and assertions that compensation is owed. Congress has from time to time legitimized conveyances that otherwise would be invalid, and inother legislation has permitted certain general types of conveyances. In particular, the conversionof federal rail corridors to recreational use under the Rails to Trails legislation may occasion furtherlitigation as to the interests held by the United States and those of adjacent landowners.