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Trail Trouble!

According to the Rails-to-Trails Conservancy, nationwide over 20,000 miles of former railroad lines have been converted to trails under the Rails-to-Trails program. This program is partly premised on the assumption that railroad right of way originally granted by the federal government returned to government ownership upon abandonment. That assumption has been placed in question by today’s decision in Brandt v. United States, at least to the extent that the railroad obtained its right of way under the terms of the General Railroad Right-of-Way Act of 1875.

In 1908 the Laramie, Hahn’s Peak and Pacific Railroad (LHP&P) obtained 66 miles of right of way across federal land in Wyoming under the provisons of the 1875 Act. In 1976 the Brandt family purchased land from the government which was subject to some of this right of way. Later, a successor railroad sought permission to abandon the line using this right of way. By 2004 all the rails had been removed and abandonment completed. In 2006 the United States initiated an action to quiet title to the abandoned right of way in the United States, arguing that abandoned railroad right of way originally granted across federal land reverted to the government. The District Court found in favor of the government and the Tenth Circuit Court of Appeals affirmed. Today the Supreme Court reversed, finding that under the 1875 Act only granted the railroad an easement to use the property for railroad purpose which easement was extinguished once the railroad stopped using it for railroad purposes.

The exact impact of this decision on the rails to trails program is unclear. Justice Roberts pointed out in his majority opinion that prior to 1875 Congress granted rights of way to railroads under various land-grant statutes. The rights created under those statutes were not addressed by this decision and may or may not still revert to the United States. What is clear is that the legitimacy of trails built on right of way obtained under the 1875 Act are in question, unless rights to use the land for a trail were secured from the underlying land owner. The decision also raises questions for trails proposed for not yet abandoned right of way, as the Brandt decision suggests that right to use that easement, at least if obtained under the 1875 act, ends once the property is no longer used for railroad purposes.