Signing off on 2013 and looking towards 2014, an interesting case with property rights implications is scheduled for argument before the United States Supreme Court on January 14, 2014.  The case is captioned Marvin M. Brandt Revocable Trust v. United States.  

The Court certified the following question for briefing and argument:

“This case involves the General Railroad Right-of-Way Act of 1875 (“1875 Act”), under which thousands of miles of rights-of-way exist across the United States. In Great Northern Ry.  Co. v. United States, 315 U.S. 262 (1942), this Court held that 1875 Act rights-of-way are easements and not limited fees with an implied reversionary interest.  Based upon the 1875 Act and this Court’s decisions, the Federal and Seventh Circuits have concluded that the United States did not retain an implied reversionary interest in 1875 Act rights-of-way after the underlying lands were patented into private ownership. In this case, the Tenth Circuit reached the opposite conclusion and acknowledged that its decision would continue a circuit split. The question presented is:  Did the United States retain an implied reversionary interest in 1875 Act rights-of way after the underlying lands were patented into private ownership?”

The Pacific Legal Foundation has taken up the property owners’ cause, and argues that the government’s Rails to Trails program takes private property without payment of just compensation in violation of the Constitution.  In the Brandt case, the railroad right-of-way was abandoned, and the United States sought to continue the Medicine Bow Rail Trail across the Brandt’s property without payment of compensation arguing that it owned the property.  The 10th Circuit Court of Appeals agreed with the United States in its opinion issued September 11, 2012.

We’ll be sure to post the Court’s decision upon issuance.

So, that’s it for 2013, Merry Christmas, Happy Holidays, and a Happy New Year to all!

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