Past, Present and Future of Rail-to-Trail Conversions

RAILS TO TRAILS
Past, Present, and Future
Bryan E Townley
UST 609 Land Use Control/Planning Law
5/7/15

Railsto Trails:Past,Present,andFuture
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Contents
A. Introduction and Background…………………………………………………………………………..2
B. Rails to Trails Legislature………………………………………………………………………………….4
1. National Trails SystemAct, 1968…………………………………………………………….4
2. Railroad Revitalization and Regulatory Reform Act, 1976…………………….…4
3. Section 8(d) of the National Trails SystemAct, 1983……………………….………5
4. Establishment of the Rails to Trails Conservancy, 1986……………….………….6
5. National Trails SystemImprovements Act, 1988…………………………………….6
6. IntermodalSurfaceTransportation Act, 1991………………………………….……..7
7. Transportation Equity Act for the 21stCentury, 1998, and Safe,
Accountable, Flexible, and Efficient Transportation Equity Act: A Legacy for
Users, 2005…………………………………………………………………………………………………7
8. Moving Ahead for Progress in the 21stCentury Act, 2012……………….……..8
C. Railbanking and railroad abandonmentprocess……………………………………………….8
1. 43 U.S.C. § 912……………………………………………………………………………………….8
2. Procedures and administration……………………….……………………………………..9
i. Authority…………………………………………….……………………………………….10
ii. Notice of InterimTrail Use………………………………………………………….11
3. Reinstatement………………………………………………………………………………………12
D. Legal Challenges…………………………………………………………………………………………….13
1. Deeds, Easements, and Abandonment………………………………………………….13
i. Preseault v. United States, 1996………………………………………………….14
ii. Lawson v. Washington, 1986……………………....................................16
iii. Shifting Public UsePolicy………………………………………………..………….18

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iv. Challenges to Shifting Public UsePolicy………………………….………….20
v. Statute of Limitations for Takings Claims..................................…...22
2. Federally Granted Rights of Way……………………………………….………………...24
i. Rights of Way Granted Under Civil War-Era Acts………………………….25
ii. Rights of Way Granted Under the 1875 GeneralRailway Right of
Way Act………………………………………………………………………………………….26
iii. Pre-CivilWar Grants…………………………………………………………………..27
iv. Conflict between Courts…………………………………………………………….29
v. Marvin M. Brandt Revocable Trust v. United States, 2014…………..30
E. Conclusion and Futureof Rails to Trails…………………………………………………………..32
Sources………………………………………………………………………………………………………………34

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A. Introduction and Background
At the turn of the 20th century railroads were the most dominant form of transportation in the
United States, linking the entire country with a vast network. Railroads were responsible for the
movement of passengers and freight across the country, in addition to augmenting national
defense as the Interstate Highway System would in the coming years. At their peak in 1916,
American railroads operated over 275,000 miles of track. Many of these lines helped expand
the country westward in the prior years, opening up new territory to European-descended
settlers from the eastern half of the country.
However, two new 20th century inventions spurred a shift in the way people got around. The
automobile and the airplane, and each’s subsequent technological improvements, became the
preferred modes of passenger transportation. A spin-off of the automobile, the truck, quickly
began cutting away from freight railroads’ business. The 1950s and 1960s saw railroads start to
falter financially, and by the 1970s the decline became precipitous. Companies plagued with
fiscal instability resorted to mass abandonment of their rail lines.1 Penn Central, one of the
nation’s largest railroads at the time, filed for bankruptcy in 1970 and was dissolved by 1976.2
In 1980 the federal government stepped in with the Staggers Rail Act, which had the overall
purpose of deregulating the railroads so as to remove burdens that were unnecessary.
Provisions, such as railroads having the ability to price their service without needing ICC
1 “Railbanking”Rails-to-Trails Conservancy.http://www.railstotrails.org/build-trails/trail-building-
toolbox/railbanking/
2 “The Penn Central Railroad”American-Rails.com.http://www.american-rails.com/penn-central.html

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approval, allowed operators to push back into the black.3 The Act also triggered an even greater
abandonment of rail lines, through streamlining the process of shedding underutilized
infrastructure. Between 1975 and 1990, 65,000 miles of railroads were abandoned, almost
double the figure of the previous 45 years.4 America’s extensive network of railroads that had
been pieced together in a Frankenstein fashion was in jeopardy of being torn apart.
Meanwhile, substantial abandonment meant that long, linear tracts of land had become vacant.
During the 1970s- early 1990s, residents across the country began to use these abandoned rail
corridors as unofficial “trails.” These corridors, being inherently flat out of necessity, made for
great spaces for recreation, and their connections between major population centers ensured a
ready and waiting market. Parallel environmental movements and an expanding national trail
network, coupled with concerns about national security in the wake of mass railroad
abandonment, forced the federal government to intervene and take advantage of this unique
opportunity.5 If acted upon, these “Rail-Trails,”as they came to be called, could satisfy not only
security interests through preserving much of the former rail network, but also environmental
advocates (reducing greenhouse gas emissions and roadway congestion), public health
practitioners (active transportation and recreation), and conservation and preservation
interests (by connecting with the growing National Trail network).
3 “The Impactof the Staggers Rail Actof 1980” Association of American Railroads5/14.
https://www.aar.org/BackgroundPapers/Impact%20of%20the%20Staggers%20Act.pdf
4 “Railbanking”Rails-to-TrailsConservancy.
5 “History of RTC and the Rail-Trail Movement” Rails-to-TrailsConservancy.
http://www.railstotrails.org/about/history/

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B. Rails to Trails Legislature
1. National Trails System Act, 1968
Spurred by the Appalachian Trail’s success and a growing population’s desire for recreational
space, the federal government began toying with the idea of creating a system of national trails
beginning in the 1950s. In 1968, Congress enacted the National Trails System Act, laying the
foundation for a national network of trails. In addition to the goal of enhancing recreational
space, the trails were also to connect historic and/or scenic sites of national importance.
Managed by the National Park Service, the Forest Service, and the Bureau of Land
Management, the trails were placed into four categories: National Scenic Trails, National
Historic Trails, National Recreation Trails, and trails that simply provide connection to or
between those in the larger network. Since the Act was established, it has allowed for at least
1,000 conversions of rail corridors for trail use.6
2. Railroad Revitalization and Regulatory Reform Act, 1976
In a prelude to the Staggers Rail Act in 1980, the Railroad Revitalization and Regulatory Reform,
or “4R” Act, was established in 1976. The 4R Act was charged with helping struggling railroads
achieve financial stability, through a streamlined federal regulatory process.7 The Act also
contained overlooked sections pertaining to trail establishment, including a Public Use
Condition which allows for the potential transfer of railroad rights of way. Upon a decision of
6 Johnson, Sandra L. “Federal programs and Legislation:An overview of the NATIONAL TRAILS SYSTEM ACT”
National TrailsTrainingPartnership 3/9/15.http://www.americantrails.org/resources/feds/NatTrSysOverview.html
7 “Railroad Revitalization and Regulatory Reform Act” 45 U.S.C. § 801-856.
https://www.law.cornell.edu/uscode/text/45/chapter-17

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abandonment, the railroad must propose to transfer its right of way for public use before
making an exchange with another entity. An additional portion of the 4R Act would lead to the
creation of the Rails to Trails Grant Program, generating funding for some of the first rail-trails.8
3. Section 8(d) of the National Trails System Act, 1983
After 1980’s Stagger Rail Act, the federal government took an important step forward in Rails to
Trails legislation with the enactment of Section 8(d) of the National Trails System Act, in 1983.
Section 8(d) allows for an arrangement between a railroad company and a trail organization
(“any person, public or private”) in which an abandoned rail corridor is allowed to be used as a
trail, with the provision that the corridor can be given back to the railroad if dictated by future
need.9 Called railbanking, this transfer process begins with a railroad’s submission of an
abandonment notice to the Surface Transportation Board. After this point, trail organizations
can reach out to the railroad to establish a railbanking agreement. If one is reached, the line is
not formally abandoned and a Notice of Interim Trail Use is established. The railroad must give
its consent in the interim use of the corridor, and the entire agreement process is given an
initial, and extendable, 180 day timeline.10
Railbanking helps guard transportation corridors against their partitioning to adjacent
landowners, and directly fights such “reverter clauses.”11 Partitioning a railroad’s former right
of way to individual landowners creates a nearly insurmountable hurdle in trail creation and its
9 “Rails to Trails”SurfaceTransportation Board.http://www.stb.dot.gov/stb/public/resources_railstrails.html
10 Ferster, Andrea C. “Rails-to-TrailsConversions:AReview of Legal Issues”American PlanningAssociation,
Planning& Environmental Law 9/06.
11 “A Network of Discovery” Nebraska Game and Parks Commission 5/05.
https://outdoornebraska.ne.gov/trails/programs/trailplan/pdf/03bCHAPTER.pdf

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required assembly of a long, narrow corridor of land. (Go to Section C for a continued
discussion of railbanking.)
4. Establishment of the Rails to Trails Conservancy, 1986
With the rising popularity of recreational trails and the newfound ease of transferring rail rights
of way to trail use, people from varied backgrounds, including those involved in walking and
biking, historians, conservation organizations, and active transportation activists, began
meeting monthly. Born from these meet-ups was the nonprofit Rails to Trails Conservancy in
1986. While acting as a planning and support agency for regional or localized trail organization,
the Rails to Trails Conservancy also advocates for trail support in political arenas and fights
statutes that would potentially undermine the nation’s current and future trail network.12
5. National Trails System Improvements Act, 1988
1988 saw additions to the National Trail Systems Act, with the new National Trails System
Improvements Act. The Act saw the bolstering of federal support in the granting of rights of
way to “State and local governments or other nonprofit entities for trail purposes.” “Any and all
right, title, interest, and estate” of rail corridors granted by the federal government, as
established in Title 43 of the United States Code,13 would then revert back to the federal
government, under supervision of the Secretary of the Interior, upon abandonment. State and
local governments or other trail organizations could then be authorized to take over
13 A more detailed discussion of 43 U.S.C. § 912 is availablein Section C below.

8
management of a corridor’s right of way so long as its use would be for public recreation
purposes.14
6. Intermodal Surface Transportation Act, 1991
Trail activities became further backed by federal funding in 1991 when the Intermodal Surface
Transportation Act (ISTEA) of 1991 was established. Rail-trails, among other items, were part of
the new “Transportation Enhancement Activities” provision, requiring states to set aside 10% of
their distributed federal funds for such projects. Trail organizations or local governments could
then submit project proposals to state governments (through advisory committees), who
selected the recipients of the federally-designated funds. Whichever entity submitted the
proposal was usually responsible for a portion of the entire project’s cost.15 16
7. Transportation Equity Act for the 21st Century, 1998, and Safe, Accountable,
Flexible, and Efficient Transportation Equity Act: A Legacy for Users, 2005
Support for rail-trails continued under the Clinton administration with the passage of the
Transportation Equity Act for the 21st Century (TEA-21). This Act established new funding for
“Transportation Enhancement Activities,” and sets forth a wider array of funding strategies for
local governments and/or trail agencies.17 Enacted in 2005, the Safe, Accountable, Flexible, and
14 “National Trails SystemImprovements Act” 16 U.S.C. §1248. https://www.law.cornell.edu/uscode/text/16/1248
15 “Intermodal SurfaceTransportation Efficiency Act of 1991” U.S. Department of Transportation National
Transportation Library.http://ntl.bts.gov/DOCS/istea.html
16 Howser, Beth Miller.“Putting Value on Rail-Trails”Public Management Magazine4/97.
http://sks.sirs.bdt.orc.scoolaid.net/cgi-bin/hst-article-display?id=SNY5703-0-
586&artno=0000019018&type=ART&shfilter=U&key=Intermodal%20Surface%20Transportation%20Efficiency%20
Act%20%281991%29&title=Putting%20Value%20on%20Rail-Trails&res=Y&ren=N&gov=N&lnk=Y&ic=N
17 “TEA-21- Transportation Equity Act for the 21stCentury: A Summary” Federal Highway Administration 4/5/11.
http://www.fhwa.dot.gov/tea21/sumtoc.htm

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Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), largely was a four-year
continuation of the provisions set forth in ISTEA and TEA-21.18
8. Moving Ahead for Progress in the 21st Century Act, 2012
The foundation for trail funding laid in the prior three acts was altered somewhat with the
passage of the Moving Ahead for Progress in the 21st Century Act in 2012. A new
“Transportation Alternatives Program (TAP)” took over the former “Transportation
Enhancement Activities,” by reducing its scope and merging several of its programs.19 In
addition, between 2012 and 2014 federal funding for TAP initiatives dropped from $1.2 billion
under the Transportation Enhancements name, to between $780 and $819 million. This
consolidation of programs and reduction in funding was seen as a step backwards in federal
legislation by the Rails to Trails Conservancy and other trail groups. However, of possibly
greater impact, MAP-21 maintained the previous three acts’ stance on the public trail
conversion of former railroad rights of way.20
C. Railbanking and railroad abandonment process
1. 43 U.S.C. § 912
Beginning in the 1850s, the United States Congress began to recognize the importance of
railroad expansion in the western half of the country. Subsequently, legislation was passed that
allowed public land to be granted by the federal government to railroads who wished to expand
18 “A Summary of Highway Provisionsin SAFETEA-LU” Federal Highway Administration,Officeof Legislation and
Intergovernmental Affairs 8/25/05. http://www.fhwa.dot.gov/safetealu/summary.htm
20 “IssueBrief: MAP-21 and the Transportation Alternatives Program”American Society of LandscapeArchitects.
http://www.asla.org/FederalGovernmentAffairs.aspx?id=34517

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(these grants will be discussed as the Civil War-era grants, the 1875 grants, and the pre-Civil
War grant agreements in Section D below). As railroads began to be consolidated and/or
abandoned in the early 1900s, much speculation arose as to whom the now abandoned land
belonged to. Two court cases, Northern Pacific Railway Co. v. Townsend (1903) and H.A. & L.D.
Holland Co. v. Northern Pacific Railway Co. (1914), inferred that Congress’ intent was to have
abandoned federally granted rights of way revert to the federal government. Congress
recognized that this reversion would cause problems due to an overabundance of small,
potentially unusable parcels. Thus in 1922, 43 U.S.C. § 912 was enacted to instead deflect the
reversion to landowners that held title to the land that was federally granted to the railroads.21
22
2. Procedures and administration
As discussed in Section B above, Railbanking was largely born out of the federal government’s
interest in preserving a vast network of transportation corridors in the face of mass railroad
abandonment. Through additions to the National Trails System Act in 1983 (Section 8(d)), rail
corridors that were to be abandoned could be “banked” as rail-trails, preserving rights of way
for potential future rail use and dodging potential reversions to adjacent property owners.
21 “Whenever public lands of the United States have been or may be granted to any railroad company for use as a
rightof way for its railroad or as sites for railroad structures of any kind,and use and occupancy of said landsfor
such purposes has ceased or hereafter cease, whether by forfeiture or by abandonment by said railroad company
declared or 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…betransferred to and vested in any person, firm, or
corporation.”
22 Marlow v. Malone, 315 Ill.App.3d 897, 734 N.E.2d 195 (App. Fourth Dist.2000). http://caselaw.findlaw.com/il-
court-of-appeals/1417906.html

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i. Authority
The Surface Transportation board has regulatory authority over all aspects of railroads in the
United States. Through the STB, a railroad that wishes to abandon a corridor or a portion of a
corridor must do one of two things: 1) file a standard abandonment, or 2) seek an exemption.23
If either are approved by the STB, the STB loses authority over the corridor and the property is
disposed of in accordance with reversionary state law. The railbanking procedure side-steps
corridor abandonment, and instead transfers the railroad’s right of way and all responsibility to
a trail operator (or “interim trail manager”). The right of way is therefore not abandoned and
the STB keeps its authority over the corridor. The National Trails SystemAct specifically blocks
state reversionary law from coming into effect,24 however takings claims cannot be dodged
unless a corridor’s easement’s scope is wide enough to include use as a trail (see Section D
below).
23 49 U.S.C.A. § 10502,Authority to exempt rail carrier transportation:“(a) In a matter related to a rail carrier
providingtransportation subjectto the jurisdiction of the Board under this part, the Board, to the maximum extent
consistentwith this part, shall exempt a person, classof persons,or a transaction or servicewhenever the Board
finds that the application in wholeor in part of a provision of this part--
(1) is not necessary to carry out the transportation policy of section 10101 of this title; a nd
(2) either--
(A) the transaction or serviceis of limited scope;or
(B) the application in wholeor in partof the provision isnotneeded to protect shippers fromthe
abuseof market power.”
24 16 U.S.C. § 1247(d): Railbanked corridors “shall notbe treated, for purposes of any lawor ruleof law, as an
abandonment of the use of such rights-of-way for railroad purposes.”

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ii. Notice of Interim Trail Use
After a railroad files either a standard abandonment or an exemption, and one of the two is
approved by the STB, a railbanking petition can then be filed by the trail operator. According to
49 C.F.R. 1152.29, the railbanking petition must include:
“(1) A map depicting, and an accurate description of, the right-of-way, or portion thereof
(including mileposts), proposed to be acquired or used;
(2) A statement indicating the trail sponsor's willingness to assume full responsibility for:
(i) Managing the right-of-way;
(ii) Any legal liability arising out of the transfer or use of the right-of-way (unless the
user is immune from liability, in which case it need only indemnify the railroad against
any potential liability); and
(iii) The payment of any and all taxes that may be levied or assessed against the right-of-
way; and
(3) An acknowledgment that interim trail use is subject to the sponsor's continuing to meet its
responsibilities described in paragraph (a)(2) of this section, and subject to possible future
reconstruction and reactivation of the right-of-way for rail service.”
After the trail operator files the petition the ball is in the railroad’s court in confirming with the
STB (within ten days) that the two parties have come to an agreement in the establishment of a
trail. The STB can then finally issue a Notice of Interim Trail Use which allows the railroad to
remove its service from the corridor (essentially abandon the corridor, but not formally).

13
Initially the Notice of Interim Trail Use lasts an extendable 180 days for the railroad and trail
operator to hammer out the final details of their agreement. Once the final details are
established, the Notice of Interim Trail Use can be extended indefinitely so as to allow for the
potential return to rail use at a future time. If either party backs out of the agreement or the
180 day period has passed, the corridor automatically becomes abandoned.25
3. Reinstatement
Major rail carriers in the United States, including Union Pacific, CSX, and Norfolk Southern have
indicated that it is highly unlikely that their corridors that have been railbanked will return to
rail service in the near future. Some railroad officials operate under the assumption that the
trail is permanent, and may not even keep formal records of their banked corridors. However,
in the rare event that rail service is reinstated, railbanking represents a more cost-effective
measure than simply abandoning a corridor and having to reassemble all of the necessary
parcels of land. Reinstatement of rail service along a corridor involves the railroad contacting
the Surface Transportation Board, which then revives the original abandonment proceedings,
and invalidates the interim trail use.26 Some railbanked corridors that have been returned to
rail service became “rails-with-trails” where the trail runs alongside the railroad track. Rails-
25 Caldwell v. U.S.A., 391 F.3d 1226 (Fed. Cir.2004).
https://a.next.westlaw.com/Document/I9efe7f338bc411d99a6fdc806bf1638e/View/FullText.html?navigationPath
=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad604060000014d2ae0f847e74262d9%3FNav%3DCASE%
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ext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29
26 “Issues Related to PreservingInactiveRail Lines as Trails”United States General Accounting Office10/99.
http://atfiles.org/files/pdf/GAO-Preserving-Inactive-Rail-Lines-Trails.pdf

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with-trails have also become more common as the rate of railroad abandonment in the United
States has leveled off and trails are simply constructed adjacent to rail lines from the onset.27
D. Legal Challenges
Rail corridors are often pieced together using many different methods of acquisition, such as
“in fee” purchases, easement purchases, or federal grantings.28 Compounding this, information
about property acquisition is sometimes ambiguous or nonexistent.29 Therefore when a railroad
becomes abandoned, many stakeholders may claimownership of the corridor.
1. Deeds, Easements, and Abandonment
A common place of conflict in trail ownership litigation arises from disputes over the nature of
railroad deeds. These deeds often do not spell out whether the “granted land” or “right of way”
is a fee or an easement. This becomes of great importance in court where a determination of
one or the other could create entirely different outcomes in terms of the corridor’s future use.
A finding that the land is an easement could make the corridor more vulnerable to reversion to
adjacent property owners. Situations involving easements are also further examined to discern
whether the easement has been abandoned or not. The abandonment designation requires
that the railroad took some action or went through some process that demonstrated that the
easement would no longer be used for rail purposes.
27 “Railbankingand Rail-Trails:A Legacy for the Future” Rails to TrailsConservancy 3/05.
http://atfiles.org/files/pdf/legacyrailbank.pdf
29 Frank, Richard M., Meltz, Robert, and Merriam, Dwight H. “The Takings Issue:Constitutional Limits on Land Use
Control and Environmental Regulation” 1999.

15
Much like the nature of deeds and easements, there are differences in the meaning of what
“abandonment” of a railroad corridor is when looking through the lens of either the federal or
state government. As mentioned in Section C above, the Surface Transportation Board has
authority over a railroad’s abandonment proceedings. Under federal law, a railroad has become
abandoned when it has received permission to do so from the STB. Because of Section 8(d) of
the National Trails System Act, the STB can sidestep abandonment altogether by administering
an interim trail use agreement between the railroad and a trail organization. However, under
state law, abandonment is considered to be more of an active process; one that requires steps
that physically alter the corridor, such as removal of railroad track. It becomes entirely possible,
therefore, that a rail corridor could be designated as abandoned by the state government, even
when the STB says it is not. When this has occurred, courts have generally ruled in favor of
states’ definitions of abandonment and property owners’ interests.30
i. Preseault v. United States, 1996
Possibly the most significant conflict between trail organizers and landowners adjacent to a rail
corridor occurred in Vermont between 1975 and 1996. In 1975, the Vermont Railway removed
tracks, signals, and other railway infrastructure along a rail corridor it leased from the State of
Vermont. The Preseaults, landowners adjacent to the corridor, believed that the actions by the
railroad amounted to a discontinuance of their service over the line, and thus was an
abandonment. The Supreme Court of Vermont, however, asserted that the railway had not
formally abandoned the line, and because of this was still under the jurisdiction of the

16
Interstate Commerce Commission. The Preseaults then asked the ICC to formally pronounce the
railway as abandoned through a petitioning process. Vermont stated that it held title to the
railway in fee simple, that it wanted to formally discontinue service on the rail line, and that it
intended to sign an agreement with the City of Burlington for the establishment of a trail as
interim use. The ICC granted these three provisions to the State of Vermont in 1986 and
dismissed the Preseaults’ petition.
In 1988, the Preseaults argued in the United States Court of Appeals for the Second Circuit that
Section 8(d) of the National Trails SystemAct was unconstitutional. The court held that the Act
was in fact constitutional, and the Preseaults were to receive no remedy.31 The case was then
taken to the United States Supreme Court in 1990, where it was decided once again that
Section 8(d) of the Act was constitutional. However, the court stated that the Preseaults could
file a takings claimunder the Fifth Amendment in the Court of Federal Claims.32 That court once
again ruled against the Preseaults, and their complaint was dismissed in 1992.
The Preseaults then filed a takings claimin the US Supreme Court, stating that the corridor’s
interim use as a rail-trail was a taking of their property. The manner of the railroad’s acquisition
and the scope of its control over the corridor became the focal point of the case. First, the court
had to decide whether the railroad’s ownership of the corridor was in a fee simple estate or an
easement. Another level of analysis was required if the corridor was an easement, as its scope
31 Preseault v. Interstate Commerce Commission, 853 F.2d 145 (1988).
https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1988102673&pubNum=350&originati
ngDoc=Iba1b3f15940711d993e6d35cc61aab4a&refType=RP&originationContext=document&transitionType=Docu
mentItem&contextData=(sc.Search)
32 In the 1990 Preseault case,the courtfound that creatinga trail from an abandoned railroad rightof way under
the National TrailsSystemAct Section 8(d) would effect a takingif the easement would have instead reverted back
to the adjacentlandowner,and said landowner could arguefor justcompensation.

17
in allowing public recreation trails as a continuance of a “public transportation use” must be
examined. The court looked to Vermont property law to formulate its decision in the case. In
Vermont, estates acquired by railroads are of very limited scope- not enough to be considered
fee simple (the title to the property in question was actually incorrectly filed as fee simple).
After establishing that the corridor was really an easement, the court proclaimed that because
the scope of the estate was narrow, even for easement standards, a trail was not a continuance
of a transportation corridor in line with its original purpose for rail. The court also clarified that
under Vermont property law, a railroad’s physical removal of its infrastructure hindered its
“future existence” and was therefore abandoned. Because of this, the court ruled that the
corridor’s conversion as a public recreation trail was a taking, and just compensation was to be
paid by the federal government.33 34
ii. Lawson v. Washington, 1986
Another case similar to Preseault v. United States was Lawson v. Washington in 1986, where
the Washington State Supreme Court found that privately-created easements are not meant for
continued public use. The plaintiffs owned property directly adjacent to a Burlington Northern
Railroad corridor in the process of abandonment, and believed that the land should revert to
33 Preseault v. United States, 100 F.3d 1525 (1996).
https://a.next.westlaw.com/Document/Iba1b3f15940711d993e6d35cc61aab4a/View/FullText.html?navigationPat
h=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad604020000014cb97cb8a63e217e4c%3FNav%3DCASE
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text=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29
34 Preseault v. United States, 100 F.3d 1525 (U.S. App. 1996).
http://www.casebriefs.com/blog/law/property/property-law-keyed-to-dukeminier/private-land-use-controls-the-
law-of-servitudes/presault-v-united-states/

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them upon abandonment, stating that RCW 64.04.18035 and 64.04.19036 are unconstitutional
and constitute takings without just compensation (two statutes that allow the continuation of a
railroad right of way for public use). On the other hand, King County, Washington asked the ICC
to put in place a 120 day public use condition, which would not allow disposal of the corridor,
unless for public use. Instead of the right of way being a continual public easement as the trial
court stated, the Washington Supreme Court said that a change in transportation mode of the
corridor from a railroad to anything else constituted an abandonment and was outside the
scope of the deed (“future interests are so remote and speculative that they are not entitled to
constitutional protection under takings and due process provisions”). The state’s argument,
that the railroad corridor was part of a continuous transition from one form of transportation
to another over time, fell flat when the court cited Washington State case law. The Court
further stated that the transference of the corridor from railroad to trail use would require just
compensation and that RCW 64.04.180 was constitutional. However, RCW 64.04.190 was found
unconstitutional in regards to King County’s acquisition of the corridor’s right of way without
just compensation.
35 “Railroad properties,includingbutnot limited to rights-of way, land held in fee and used for railroad operations,
bridges,tunnels, and other facilities,aredeclared to be suitablefor public useupon cessation of railroad
operations on the properties.It is in the public interestof the state of Washington that such properties retain their
character as public utility and transportation corridors,and thatthey may be made availablefor public uses
includinghighways,other forms of mass transportation,conservation,energy production or transmission,or
recreation.”
36 “(1) Public utility and transportation corridors arerailroad properties (a) on which railroad operations have
ceased; (b) that have been found suitablefor public useby an order of the Interstate Commerce Commission;and
(c) that have been acquired by purchase,lease,donation, exchange, or other agreement by the state, one of its
political subdivisions,or a public utility.
(2) A public utility and transportation corridor retainsits public usecharacter as longas itis owned by a public
agency or utility.A public utility and transportation corridor isnotsubjectto reversion,takingby adverse
possession,or any similarproperty interests ripeningon the cessation of railroad operations.”

19
One case cited in Lawson v. Washington was Schnabel v. County of DuPage (Illinois), where the
court found that one indicator of corridor abandonment was its transition to trail use. Another
important outcome of the decision in Schnabel was that explicit reversionary language was not
required in a right of way grant for a corridor’s land to return to ownership of adjacent
landowners upon abandonment.37 A case with a similar outcome, McKinley v. Waterloo
Railroad Company, occurred in Iowa in 1985.38
iii. Shifting PublicUse Policy
Some states have made clear distinctions in the rail corridor abandonment process, asserting
differences between the abandonment of railroad purposes along the right of way versus the
abandonment of the right of way in and of itself. Known as “Shifting Public Use Policy,”
transportation easements can be construed to encompass other modes of transportation than
what was their originally intended mode (what was “in vogue” at the time).39 The groundwork
for this policy was laid in 1868 with the Supreme Court of Ohio’s decision in William S. Hatch v.
The Cincinnati and Indiana Railroad Company, where a former canal right of way could be
converted for use as a railroad corridor.40 More recently, in Washington Wildlife Preservation v.
State (1983), the Supreme Court of Minnesota decided that a former rail right of way’s use as a
37 Lawson v. State of Washington, 107 Wn.2d 444 (1986).
http://courts.mrsc.org/mc/courts/zsupreme/107wn2d/107wn2d0444.htm
40 William S. Hatch v. The Cincinnati and Indiana Railroad Company, 18 Ohio St. 92 (1868).
https://books.google.com/books?id=-PdGAQAAMAAJ&pg=RA1-PA107&lpg=RA1-
PA107&dq=hatch+v+cincinnati+%26+irr+1868&source=bl&ots=xGptLFL0IE&sig=wlXBwhFyg39-
6HEOqCKqhmrx10o&hl=en&sa=X&ei=oB8rVdjTMMivggTYpYDoCA&ved=0CB4Q6AEwAA#v=onepage&q=hatch%20v
%20cincinnati%20%26%20irr%201868&f=false

20
trail was within the scope the railroad’s original easement and would not revert to neighboring
landowners: “Recreational trail use of the land is compatible and consistent with its prior use as
a rail line, and imposes no greater burden on the servient estates. The use is a public use, which
is consistent with the purpose for which the easement was originally acquired.”41 Other cases
that affirm Shifting Public Use Policy include Minnesota v. DNR (1983) and Rieger v. Penn
Central Corp. (1985).42
In 1999, the Maryland Court of Appeals boosted shifting public use in its decision in Chevy
Chase Land Co. v. United States, where landowners claimed the establishment of a railbanked
trail was a taking of their property. This corridor in Montgomery County, Maryland was
originally established through a 1911 deed given by a land company, and was found by the
court to be an easement. However, it was decided that because the deed did not expressly
state that the corridor was for rail use only, its continuation as a railbanked trail was legal,43 and
because it was continued for public use, the corridor was not formally abandoned.44 One year
later, the Federal Circuit trusted the arguments put forth by the Maryland Court of Appeals in
their decision that the railbanking was not a taking.45
41 Washington Wildlife Preservation v. State, 329 N.W.2d 543, 545, 547.
http://law.justia.com/cases/minnesota/supreme-court/1983/82-150-1.html
43 “Based on the absence of limitationson useof the right-of-way in the languageof the deed, we concluded that
the use is within the legally anticipated scopeof the 1911 deed, in lightof the railroad'sstatus as a highly regulated
public servicecorporation.Thedeed anticipated a means of transitover the right-of-way, and the trail useis
consistentwith what was anticipated.Moreover, the useof the right-of-way as a trail poses no unreasonable
burden on the servientestate; indeed, the use is less burdensome than freight railroad use.”
44 Chevy Chase Land Co. v. United States, 733 A.2d 1055 (Md. 1999).
https://www.courtlistener.com/opinion/1979940/chevy-chase-land-co-v-united-states/
45 Ferster, Andrea C. “Rails-to-TrailsConversions:AReview of Legal Issues”American PlanningAssociation:
Planningand Environmental Law 9/06. http://www.railstotrails.org/resourcehandler.ashx?id=4612

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iv. Challenges to Shifting Public Use Policy
Shifting public use has not been able to gain a foothold everywhere, however. In the Wisconsin
Supreme Court, Pollnow v. State Department of Natural Resources involved provisions of the
General Railroad Right of Way Act of 1875 (43 U.S.C. § 934) which states, “The right of way
through public lands of the United States 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 with the Secretary of the Interior a copy of its articles
of incorporation, and due proofs of its organization under the same…” This statute sets forth
that railroad rights of way created under this Act are easements, and not fees.
The Pollnows lived adjacent to a former Milwaukee Road Railroad, which ended service in 1973.
The State of Wisconsin Department of Natural Resources purchased the right of way through
quitclaim deed for trail purposes in the same year, while the state received a quitclaim deed
from a property owner (who owned the Pollnows’ parcel prior to their arrival) in 1975. The
court agreed with the Pollnow’s assertion that the railroad’s right of way was an easement and
did not have a fee simple absolute. The court then looked deeper into the easement in question
to find if its scope included transition to a trail use. Citing Faus v. City of Los Angeles,46 the State
argues that trail use is a legitimate evolution of public transportation corridors over time. The
court, however, disagreed and postulated that the case in question stretched “the principle of
Faus beyond reasonable limits.” The Supreme Court of Wisconsin ultimately held that the
46 Faus v. City of Los Angeles involved an easement that was used for an electric railway.Thecourt ruled that the
easement was not destroyed when the use transferred to motor coach servicebecausethe express purposeof the
easement was still satisfied.

22
Department of Natural Resources’ deed to the corridor did not give it title, and thus was
reserved for the Pollnows.47
The limits to shifting public use in California were also defined by the courts in 2004. The United
States Court of Appeals case Toews v. U.S.A. involves adjacent landowners bringing a takings
claimagainst the federal government. The predecessors of those who owned the land that
underlay the railroad corridor in question created an “Agreement of Right of Way” in 1891,
allowing for rail use on their property. Unlike some more ambiguous agreements between
property owners or governments and railroads, this agreement contained explicit language
pertaining to what should occur if the corridor was to become abandoned and rail use
discontinued: “Provided, however, that if said Railroad Company shall permanently discontinue
the use of said railroad the land and Rights of Way shall at once revert to the undersigned.”48
There was also little question over the nature of the granted land, at least in terms of its being a
fee or an easement, as both the trial court and United States Court of Appeals believed it to be
an easement. Because the federal government did not disagree with the right of way’s
designation as an easement, only the scope of the easement in regards to interim trail use, as
well as the extent of the railroad’s abandonment were the main points of contention.
The government heavily relied on arguments based on California courts’ position on shifting
public use doctrine, including the decision in Faus. The court did not disagree that shifting
47 Pollnow v. Department of Natural Resources, 88 Wis.2d 350 (1979).
http://www.leagle.com/decision/197943888Wis2d350_1412.xml/POLLNOW%20v.%20DEPARTMENT%20OF%20N
ATURAL%20RESOURCES
48 The court notes that: “a termination of the easements would not causeanythingto “revert” to the landowner.
Rather, the burden of the easement would simply be extinguished,and the landowner's property would be held
free and clear of any such burden.”

23
public use was present and lawful in the government’s argument, however noted that the
allowance of shifting between transportation modes over time was very narrow, and the
federal government’s interpretation of the doctrine was overly broad. Thusly, it was found that
the corridor’s interim use as a trail was a taking of property from adjacent landowners,
requiring just compensation to be paid by the federal government. It is interesting to note that
the City of Clovis, California, and not the federal government, actually implemented the
corridor’s trail use. However, because the City acted under Section 8 of the National Trails
System Act, the federal government would be responsible for just compensation.49
v. Statute of Limitations for Takings Claims
Somewhat recently, courts have also made clear when the six-year statute of limitations starts
to run for rail-trail takings claims as established by the Tucker Act. In Caldwell v. U.S.A. (2004), a
party of adjacent landowners filed a takings claimagainst the federal government believing that
an abandoned railroad’s easement conversion to a railbanked trail was a compensatory taking.
The main point of contention, however, was not if the trail use was a taking, but rather if
Caldwell’s filing of the takings claimwas still within the six-year window as provided by the
Tucker Act. Caldwell argued that the taking, and therefore the six-year window, did not begin
until the railroad’s right of way was physically established as a trail (October 11, 1996).
However, both the Court of Federal Claims and the Court of Appeals stated that the statute of
49 Toews v. U.S.A., 376 F.3d 1371 (Fed. Cir. 2004).
https://a.next.westlaw.com/Document/Ibfc602798ba511d9af17b5c9441c4c47/View/FullText.html?naviga tionPath
=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad604090000014d2905cf745f664485%3FNav%3DCASE%2
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24
limitations begins to run as soon as a railroad and a prospective trail group originally contact
the Surface Transportation Board about their objective of creating a trail use agreement and a
Notice of Interim Trail Use is issued. This, the court argues, is the “only government action in
the railbanking process that operates to prevent abandonment of the corridor and to preclude
the vesting of state law reversionary interests in the right-of-way.” In Caldwell, the Notice of
Interim Trail Use was first issued on August 31, 1994, with revisions filed on June 2, 1995. The
difference between these two dates did not matter, as both occurred more than six years
before the takings claimwas filed by Caldwell. Thus, the Court of Appeals affirmed the
judgement of the Court of Federal Claims and Caldwell’s takings claimwas dismissed.50 Caldwell
was heavily cited in the United States Court of Appeals decision in Barclay v. United States
(2006), where it was again found that the date of establishing the original Notice of Interim
Trail Use starts the six year window of opportunity for filing a takings claim. The court argues
that the Caldwell rule should be used in all takings claims so as to avoid unnecessary litigation
over the exact date of accrual.51 52
50 Caldwell v. U.S.A., 391 F.3d 1226 (Fed. Cir.2004).
51“The appellants' arguments in these cases urginga different trigger, depending on when abandonment occurred
under state law,when the lastNITU in a series was issued,or when the NITU was no longer subjectto collateral
attack, merely emphasize the correctness of the Caldwell rule.Appellants' arguments lead potentially to multiple
takings of a singlereversionary interestand endless litigation concerningthe appropriatedate for accrual,thus
leavinglandowners and the government in a state of great uncertainty as to their respective rights and obligations.
Here, as in Caldwell,we concludethat takings lawsupplies a singlebright-linerulefor accrual thatavoids these
adverse consequences.”
52 Barclay v. United States, 443 F.3d 1368 (Fed. Cir.April 11, 2006).
https://a.next.westlaw.com/Document/I9759b4dcc93111da89709aa238bcead9/View/FullText.html?navigationPat
h=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad6040c0000014d2b56a9049d68a6d4%3FNav%3DCASE
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ntext=Search%20Result&transitionType=SearchItem&contextData=%28sc.Search%29

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2. Federally Granted Rights of Way
Federally granted rights of way are somewhat more clear-cut in terms of the transference of
title after a railroad corridor is abandoned. This is demonstrated in Brown v. Washington, in
which landowners believed that an abandoned railroad’s property reverted to them upon
abandonment. Unlike the previously mentioned cases, Brown involved a rail corridor that was
granted (by deed or charter) to the Chicago, Milwaukee, St. Paul & Pacific Railroad Company by
the federal government. This gave the railroad company explicitly-stated fee simple title over
the corridor, and thus gave these same rights to the State of Washington, who bought the
property in question prior to the railroad’s formal abandonment. Because of this, the Supreme
Court of Washington ruled that the property owners did not hold a reversionary interest and
the corridor could be retained by the state for trail purposes.53
Phillips v. Denver & RGWR in 1996 furthered case law related to federally granted rights of way.
For formal railroad abandonments, a corridor must be “authorized” for abandonment through
a determination by the Surface Transportation Board (at the time the ICC) that the corridor is
no longer needed for interstate commerce purposes. The authorized abandonment by the STB
is then able to be put up for judicial review and declaration.54 55
53 Brown v. Washington, 130 Wn.2d 430 (1996).
54 It should be noted that abandonments are not determined by the Surface Transportation Board,as they are
simply given abandonment authority.

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i. Rights of Way Granted Under Civil War-Era Acts
Vieux v. East Bay Regional Park District affirms 43 U.S.C. § 912’s (Disposition of Abandoned
Railroad Grants) ability to control transfers of title to rights of way that were granted federally
under the Acts of July 1, 1862 and July 3, 1864 (the Civil War-era grants). Central Pacific Railway
Company, acquired later by Southern Pacific, took control of the property in question in Vieux
through these means. Before abandonment, the corridor was purchased from Southern Pacific
by Alameda County (California) for purposes of establishing a “public highway or street” (as was
deemed necessary by 43 U.S.C. § 912). The land was then donated to the East Bay Regional Park
District for trail use. Because these transfers were legal under 43 U.S.C. § 912, adjacent
landowners have no reversionary interest in the abandoned rail corridor.56
Similar to Vieux v. East Bay Regional Park District, King County v. Burlington Railroad Corp.
(1994) affirms the disposition of federally granted rights of way that were granted with the Civil
War-era grants (specifically the Northern Pacific Land Grant Act of 1864) by 43 U.S.C. § 912. In
this case, King County argued that a railroad corridor, now used as a trail and formerly operated
by the Burlington Northern Railway, was in fact abandoned, and was successfully transferred
for use as a “public highway” pursuant to 43 U.S.C. § 912. Burlington Northern, agreed that the
railroad corridor was abandoned, however believed that the “public highway” condition was
not met by King County. After reviewing 43 U.S.C. § 912, relevant King County planning
documents, and looking at cases such as Vieux v. East bay Regional Park District, the District
56 Vieux v. East Bay Regional Park District, 906 F.2d 1330 (1990). http://openjurist.org/906/f2d/1330/vieux

27
Court of Washington decided that the corridor in question had been abandoned and its trail use
did constitute a “public highway.”57
ii. Rights of Way Granted Under the 1875 General Railway Right of Way Act
In 1982, the Oregon Short Line Railroad and the Union Pacific Railroad Company applied to
abandon a section of their railroad line with the ICC, who gave the companies a one year
window of opportunity in making a final abandonment decision. Halfway through 1983, Oregon
Short Line and Union Pacific both decided not to go through with abandonment procedures,
instead keeping the track as sidetrack storage. The State of Idaho began negotiations to acquire
portions of the railroads’ land in order to widen adjacent highways. Oregon Short Line and
Union Pacific refused to simply transfer the property to the State under 43 U.S.C. § 912, and
instead asked for $5.5 million. The conflict eventually wound up in the Idaho District Court as
State of Idaho v. Oregon Short Line Railroad Co. in 1985. In its decision, the court ruled that 43
U.S.C. § 912 does in fact apply to federally granted rights of way under the 1875 Act.58 59
57 King County v. Burlington Northern, 885 F. Supp. 1419 (W.D. Wash.1994). https://casetext.com/case/king-
county-v-burlington-northern-rr-corp
58 State of Idaho v. Oregon Short Line Railroad Co., 617 F. Supp. 207 (D. Idaho 1985).
https://casetext.com/case/state-of-idaho-v-oregon-short-line-r-co-2
59 Judge Callister,Chief Justiceof the United States DistrictCourtfor the Districtof Idaho,in Oregon Short Line:
“This Court has the obligation to interpret § 912 (and §§ 913 and 316) in such a way to fully effectuate
congressional intent:These statutes would be rendered null if this Courtwere to find them inapplicableto 1875
Act rights-of-way,for they were specifically enacted to disposeof the United States' retained interest in 1875 Act
rights-of-way…In enactingthese statutes, Congress clearly feltthat ithad some retained interest in railroad rights-
of-way. The precisenature of that retained interest need not be shoe-horned into any specific category cognizable
under the rules of real property law.”

28
Two other cases, Marshall v. Chicago Northwestern Transportation Co. (1994)60 and Barney v.
Burlington Northern Railway Co. (1992),61 affirm the use of 43 U.S.C. § 912 when railroads
abandon their corridors that were granted under the Act of 1875.
There have, however, been some conflicting decisions by courts regarding federally granted
rights of way under the Act of 1875. For example, in City of Aberdeen v. Chicago and
Northwestern Transportation (1984), the District Court of South Dakota decided that 43 U.S.C. §
912 did not apply to portions of an abandoned railroad’s right of way that were granted under
the Act of 1875. Citing Great Northern Railway Company v. United States (1942), the court
argued that the Act of 1875 only granted easements to railroads, which made Section 912
irrelevant to the case.62 More recently, a similar decision was reached in Marvin M. Brandt
Revocable Trust v. United States (2014). For a more detailed discussion of Brandt case see
Section E.
iii. Pre-Civil War Grants
Land was also granted by the federal government to railroads before the civil war, in
agreements between states and the federal government. These grantings, “for the purpose of
aiding in the construction of a railroad,” act similarly to the Civil War-era and 1875 grants, and
incite similar conflicts. One such example involves an abandoned railroad right of way in
Wisconsin converted into a trail, which adjacent landowners believed should have reverted to
60 Marshall v. Chicago Northwestern Transportation Co., 31 F.3d 1028, 1032 (10th Cir.1994).
https://casetext.com/case/marshall-v-chicago-northwestern-transp-co
61 Barney v. Burlington Northern R. Co., 490 N.W.2d 726 (S.D. 1992).
https://www.courtlistener.com/opinion/2116706/barney-v-burlington-northern-r-co/
62 City of Aberdeen v. Chicago and Northwestern Transportation, 602 F. Supp. 589 (D.S.D. 1984).
https://www.courtlistener.com/opinion/1633897/city-of-aberdeen-v-chicago-north-western-transp/

29
their ownership. Bayfield County, Wisconsin, who took over ownership of the corridor after
abandonment and installed the trail, believed that it had legal control over the land due to 43
U.S.C. § 912. In Mauler v. Bayfield County, the United States Court of Appeals, Seventh Circuit
ruled in favor of the County, stating that 43 U.S.C. § 912, as well as 16 U.S.C. § 1248(c), legally
allowing the rail corridor to be reverted back to the United States and not the adjacent
landowners.63
Illinois has also dealt with cases involving similar pre-Civil War agreements between states and
the federal government. In City of Maroa v. Illinois Central Railroad (1992), the Appellate Court
of Illinois found that the City of Maroa was correct in arguing that a former railroad right of
way, granted by the federal government in 1850, reverted to the City upon abandonment
under 43 U.S.C. § 912.64 65 66 Along the same lines, the Appellate Court of Illinois also found in
Marlow v. Malone that Section 43 controlled how reversions of federally granted rights of way
before the Civil War were to be handled. Marlow specifically dealt with an adjacent property
63 Mauler v. Bayfield County, 309 F.3d 997 (Seventh Cir.2002). http://openjurist.org/309/f3d/997/mauler-v-
bayfield-county
64 The court contrasted the opinion in Illinois Central Railroad Co. v. Chicago, B&N Railroad Co. (1886), which stated
that “The [1850] grant was made for the purpose, in the main, of encouragingsettlement, and thus developing the
resources of the state and promoting the welfare of the people. It was a grant by the United States to the state on
the faith that the latter, as a sovereign, would see that the conditions of the grant were complied with. It was not
the intention of congress to provide for the buildingof lines of railroad within thestate of Illinoiswhich should be
perpetually maintained for the benefit of the United States.”
65 While43 U.S.C. § 912 allows for abandoned federally granted rights of way to revert to adjacentlandowners,it
dictates that if the corridor traverses a municipality,the land reverts to that municipality:“lands within a
municipality the titleto which,upon forfeiture or abandonment, as herein provided, shall vestin such
municipality…”
66 City of Maroa v. Illinois Central Railroad, 229 Ill.App.3d 503,592 N.E.2d 660 (1992).
http://www.leagle.com/decision/19921252592NE2d660_11152.xml/CITY%20OF%20MAROA%20v.%20ILLINOIS%2
0CENT.%20R.R.

30
owner who claimed reversionary rights, however did not hold title to the land from which the
railroad corridor was granted.67
iv. Conflict between Courts
Somewhat recently, assumptions about federally granted rights of way have become clouded
due to conflicting decisions from different courts. One such case that varied from those
previously involving federally granted rights of way was Hash v. U.S.A. (2005). Landowners
along an abandoned rail corridor in Idaho converted into a trail brought takings claims to the
Federal Circuit, arguing that that the railroad’s property should have reverted to them. Many of
these plaintiffs owned land that was patented by the federal government under the Homestead
Act of 1862, which was predated by federally granted railroad rights of way. The court ruled on
the side of the adjacent landowners, stating that homesteaders gained fee title to the land
under the federally granted rights of way, and that the landowners did indeed suffer a taking
when the land was designated for trail use. It is interesting to note that the court admitted that
national land policy is changing, especially in regards to conservation and recreation. However,
the court stated that landowners’ property rights must be respected no matter what shift in
policy occurs, and that these rights were to be dictated by the laws in effect when the original
67 Marlow v. Malone, 315 Ill.App.3d 897, 734 N.E.2d 195 (App. Fourth Dist.2000).

31
homesteaders obtained the land.68 69 Such a decision seemingly ran against most previous court
cases in how federally granted rights of way were disposed of upon abandonment.
v. Marvin M. Brandt Revocable Trust v. United States, 2014
Future rails-to-trails conflict may hinge on a 2014 Supreme Court decision in Marvin M. Brandt
Revocable Trust v. U.S. In 1976 the Brandts received fee simple title over an 83 acre parcel of
land adjacent to a National Forest, through a patent by the United States, which came with the
stipulation that a railroad right of way ran over a portion of the property. The railroad corridor,
being established in 1908, was granted by the federal government pursuant to the General
Railroad Right of Way Act of 1875. After passing through the several hands, the railroad
corridor was deemed unprofitable and was summarily abandoned between 1996 and 2004 (and
was subsequently converted into a trail). After abandonment, the federal government sought a
judicial order stating that the title to the abandoned corridor would transfer to the United
States.
68 “Statute and jurisprudenceover the century and a half of railroad development and homesteading reflect the
nation's shifts in both land policy and rail dependency. The government stresses that the present national policy i s
in marked contrastto earlier homesteadingpolicy,and that the earlier movement of federal lands into private
ownership is now countered by a policy whereby government title serves national interests such as conservation
and public recreation.The appellants respond thatthe nation, and the courts, must respect these landowners'
property rights,whatever the shifts in public attitudes or national policy.Weagree that the judicial obligation isto
apply the law,to construethe property interests here at issuein accordancewith the lawin effect at the time the
various arrangements were entered into, in implementation of the parties' intent, guided by the decisions of the
Supreme Courts of the United States and of Idaho.”
69 Hash v. U.S.A., 403 F.3d 1308 (Fed. Cir.Four, 2005).
https://a.next.westlaw.com/Document/I01273ad2a3d511d991d0cc6b54f12d4d/View/FullText.html?navigationPat
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One landowner along the corridor, Marvin Brandt, believed that he would obtain title to the
land because the corridor was only an easement, and had dissolved as soon as it was formally
abandoned. Both the District Court as well as the Court of Appeals argued in favor of the
federal government, however noting that conflict existed in the courts regarding proper
treatment of the 1875 Act.
When the case reached the Supreme Court, the decision ultimately fell on the side of Brandt,
largely because of a Supreme Court case from 72 years prior- Great Northern Railway Co. v.
United States. In Great Northern, the federal government actually argued the opposite of what
it was positing in Brandt, that a rail corridor granted under the 1875 Act was only an
easement.70 The court in Great Northern agreed and held that the 1875 Act “clearly grants only
an easement, and not a fee.” Because of the federal government’s seemingly contradictory
stance regarding the 1875 Act’s conveyance of fees or easements, the Supreme Court
somewhat harshly argues on the side of Brandt, even remarking that the government’s change
in opinion was “self-serving.” 71 72
70 Great Northern involved a railway company thatwished to construct an oil extraction operation in public landsin
Montana. The United States wanted to retain its underlyingrights to the corridor so as to block the drillingfrom
occurring.
71 JusticeSotomayor dissented,stating“By changingcoursetoday, the court undermines the legality of thousands
of miles of former rights of way that the public nowenjoys as means of transportation and recreation.And
lawsuits challengingthe conversion of former railsto recreational trailsalonemay well costAmerican taxpayers
hundreds of millionsof dollars.”
72 Marvin M. Brandt Revocable Trust v. United States, 134 S.Ct. 1257 (Supreme Court of the United States, 2014).
https://a.next.westlaw.com/Document/I096114a1a83f11e3b58f910794d4f75e/View/FullText.html?navigationPat
h=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad705200000014d307add988b2720e0%3FNav%3DCASE
%26fragmentIdentifier%3DI096114a1a83f11e3b58f910794d4f75e%26startIndex%3D1%26contextData%3D%2528s
c.Search%2529%26transitionType%3DSearchItem&listSource=Search&listPageSource=a5dfaf7ba032990918cacf11
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In regards to rail-trails, the impact of Brandt is mixed. The Rails to Trails Conservancy states, for
example, that only corridors that were federally granted under the 1875 Act would be directly
affected by the decision. All railbanked corridors, other federally granted corridors, and corridor
acquisitions from private landowners should remain safe from further litigation. The
Conservancy notes that while most of the corridors granted under the 1875 Act only lie in the
western half of the United States, Brandt directly opens the door for future cases aimed at
obtaining compensation for the corridors’ continued use as trails.73
E. Conclusion and Future of Rails to Trails
Trails are more popular now than they have ever been in the United States largely because of
the wide range of groups that see them as a benefit to their cause. While demand for trails is
increasing as more people become aware of their positive effects on air quality and traffic
congestion, the future of rail-trails is uncertain.
For one, the number of railroad corridors becoming abandoned each year has tapered off,
leaving a smaller pool of possible railbanking or trail implementation locations. In addition,
major United States rail carriers, including Norfolk Southern and CSX, have stated that rail
traffic is actually increasing, leading them to forego abandoning or banking their lightly-used
corridors. In the place of abandonment or banking, railroad companies have been retaining
their rights of way through “discontinuance authorities” which allow for discontinued service,
73 “What the Marvin M. Brandt CaseMeans for America’s Rail-Trails”The Rails-to-TrailsConservancy 3/17/14.
http://www.railstotrails.org/trailblog/2014/march/17/what-the-marvin-m-brandt-case-means-for-america-s-rail-
trails/

34
but retention of the right of way. Railroads would simply rather avoid altogether any potential
litigation that may arise through abandoning and/or reinstating service along a corridor.74
Recent court cases have also left the future of rail-trails cloudy. While railbanking has fared well
in courts, especially with 1990’s Preseault v. ICC (which found railbanking constitutional), rail-
trails established through other means have not received the same treatment. Cases such as
Hash and Brandt have greatly undermined rights of way granted by the federal government
through the grant Acts of the latter 1800s.
The future of rail-trails relies heavily upon interpretations of rail corridors’ rights of way and
their corresponding scope: courts have generally agreed that railroads’ rights of way are
easements and not fees, but have disagreed over the easements’ scope. Shifting public use
represents a policy that could greatly benefit the continued implementation of rail-trails.
However, while the policy has achieved some success in states such as Minnesota and
Maryland, its widespread viability has been put into question through court cases such as
Pollnow and Toews.
As of September 2013, roughly 8,000 takings claims involving rail-trails are pending.75 With
potential railbanking opportunities dwindling, advocates of rail-trails will have to push for
railroad easements to be treated more broadly in order to assure the future creation of rail-
trails and assure the sustainability of already established trails. However, as demonstrated in
recent court cases, their advocacy may be an uphill battle.
74 “Issues Related to PreservingInactiveRail Lines as Trails”United States General Accounting Office10/99.
75 Macdonald,Stuart. “Rail trail casedecided by Supreme Court favors adjacentlandowner”American Trails.
http://www.americantrails.org/resources/railtrails/Federal-railroad-rights-court.html

35
Sources:
-Macdonald,Stuart. “Rail trail case decidedbySupreme Courtfavorsadjacentlandowner”American
Trails. http://www.americantrails.org/resources/railtrails/Federal-railroad-rights-court.html
-“Railbanking”Rails-to-TrailsConservancy. http://www.railstotrails.org/build-trails/trail-building-
toolbox/railbanking/
-“RailstoTrails” Surface TransportationBoard.
http://www.stb.dot.gov/stb/public/resources_railstrails.html
-“Historyof RTC and the Rail-Trail Movement”Rails-to-TrailsConservancy.
-Ferster,AndreaC.“Rails-to-TrailsConversions:A Review of Legal Issues”AmericanPlanning
Association,Planning&Environmental Law 9/06.
http://www.railstotrails.org/resourcehandler.ashx?id=4612
-“What the Marvin M. Brandt Case Means forAmerica’sRail-Trails”Rails-to-TrailsConservancy3/17/14.
http://www.railstotrails.org/trailblog/2014/march/17/what-the-marvin-m-brandt-case-means-for-
america-s-rail-trails/
“The Impact of the StaggersRail Act of 1980” Associationof AmericanRailroads5/14.
https://www.aar.org/BackgroundPapers/Impact%20of%20the%20Staggers%20Act.pdf
Johnson,SandraL. “Federal programsandLegislation:Anoverview of the NATIONALTRAILSSYSTEM
ACT” National TrailsTrainingPartnership3/9/15.
http://www.americantrails.org/resources/feds/NatTrSysOverview.html
“RailroadRevitalizationand RegulatoryReformAct”45 U.S.C. § 801-856.
https://www.law.cornell.edu/uscode/text/45/chapter-17
“The PennCentral Railroad”American-Rails.com. http://www.american-rails.com/penn-central.html
“A Networkof Discovery”NebraskaGame andParksCommission5/05.
https://outdoornebraska.ne.gov/trails/programs/trailplan/pdf/03bCHAPTER.pdf
“National TrailsSystemImprovementsAct”16 U.S.C. §1248.
https://www.law.cornell.edu/uscode/text/16/1248
“Dispositionof AbandonedorForfeitedRailroadGrants” 43 U.S.C.§912.
http://www.gpo.gov/fdsys/granule/USCODE-2011-title43/USCODE-2011-title43-chap21-sec912
“Intermodal Surface TransportationEfficiencyAct of 1991” U.S. Departmentof TransportationNational
TransportationLibrary. http://ntl.bts.gov/DOCS/istea.html
Howser,BethMiller.“PuttingValueonRail-Trails”PublicManagementMagazine 4/97.
http://sks.sirs.bdt.orc.scoolaid.net/cgi-bin/hst-article-display?id=SNY5703-0-
586&artno=0000019018&type=ART&shfilter=U&key=Intermodal%20Surface%20Transportation%20Effic
iency%20Act%20%281991%29&title=Putting%20Value%20on%20Rail-
Trails&res=Y&ren=N&gov=N&lnk=Y&ic=N

36
“TEA-21- TransportationEquityActfor the 21st
Century:A Summary”Federal HighwayAdministration
4/5/11. http://www.fhwa.dot.gov/tea21/sumtoc.htm
“A Summaryof HighwayProvisionsinSAFETEA-LU”Federal HighwayAdministration,Office of
LegislationandIntergovernmental Affairs8/25/05. http://www.fhwa.dot.gov/safetealu/summary.htm
“Issue Brief:MAP-21and the TransportationAlternativesProgram”AmericanSocietyof Landscape
Architects. http://www.asla.org/FederalGovernmentAffairs.aspx?id=34517
“TransportationAlternativesProgram(TAP) Guidance”Federal HighwayAdministration3/6/14.
http://www.fhwa.dot.gov/map21/guidance/guidetap.cfm
Frank,Richard M., Meltz,Robert,andMerriam, DwightH. “The TakingsIssue:Constitutional Limitson
Land Use Control andEnvironmental Regulation”1999.
https://books.google.com/books?id=J7GiuIik90cC&pg=PA443&lpg=PA443&dq=rieger+v.+penn+central+
corp+1985&source=bl&ots=o-
HfgZRto4&sig=NiBmOcgeLs3Os9gSvsdPPE5LJnw&hl=en&sa=X&ei=miIrVZ2OKMuYNuWRg_gI&ved=0CB4
Q6AEwAA#v=onepage&q=rieger%20v.%20penn%20central%20corp%201985&f=false
William S. Hatch v. The Cincinnatiand Indiana Railroad Company,18 OhioSt.92 (1868).
https://books.google.com/books?id=-PdGAQAAMAAJ&pg=RA1-PA107&lpg=RA1-
PA107&dq=hatch+v+cincinnati+%26+irr+1868&source=bl&ots=xGptLFL0IE&sig=wlXBwhFyg39-
6HEOqCKqhmrx10o&hl=en&sa=X&ei=oB8rVdjTMMivggTYpYDoCA&ved=0CB4Q6AEwAA#v=onepage&q=
hatch%20v%20cincinnati%20%26%20irr%201868&f=false
Washington Wildlife Preservation v.State,329 N.W.2d543, 545, 547.
http://law.justia.com/cases/minnesota/supreme-court/1983/82-150-1.html
Chevy ChaseLand Co.v.United States,733 A.2d1055 (Md.1999).
http://mdcourts.gov/opinions/coa/1999/24a98m.pdf
Preseaultv. InterstateCommerceCommission,853F.2d 145 (1988).
https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1988102673&pubNum=350
&originatingDoc=Iba1b3f15940711d993e6d35cc61aab4a&refType=RP&originationContext=document&t
ransitionType=DocumentItem&contextData=(sc.Search)
Preseaultv. United States,100 F.3d 1525 (1996).
https://a.next.westlaw.com/Document/Iba1b3f15940711d993e6d35cc61aab4a/View/FullText.html?nav
igationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad604020000014cb97cb8a63e217e
4c%3FNav%3DCASE%26fragmentIdentifier%3DIba1b3f15940711d993e6d35cc61aab4a%26startIndex%3
D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&lis
tPageSource=8cce617c37d1f295f45239917cafaa67&list=CASE&rank=1&grading=na&sessionScopeId=1c
4a5557227c0f5072ad1aac46cec1df&originationContext=Search%20Result&transitionType=SearchItem&
contextData=%28sc.Search%29
Preseaultv. United States,100 F.3d 1525 (U.S.App.1996).
http://www.casebriefs.com/blog/law/property/property-law-keyed-to-dukeminier/private-land-use-
controls-the-law-of-servitudes/presault-v-united-states/

37
Lawson v.Stateof Washington,107Wn.2d 444 (1986).
Pollnowv.Departmentof NaturalResources,88 Wis.2d350 (1979).
http://www.leagle.com/decision/197943888Wis2d350_1412.xml/POLLNOW%20v.%20DEPARTMENT%2
0OF%20NATURAL%20RESOURCES
Brown v.Washington,130 Wn.2d 430 (1996).
Vieux v.East Bay RegionalParkDistrict, 906 F.2d 1330 (1990). http://openjurist.org/906/f2d/1330/vieux
King Countyv.Burlington Northern,885 F. Supp.1419 (W.D.Wash. 1994).
https://casetext.com/case/king-county-v-burlington-northern-rr-corp
Stateof Idaho v.Oregon ShortLineRailroad Co.,617 F. Supp.207 (D. Idaho1985).
https://casetext.com/case/state-of-idaho-v-oregon-short-line-r-co-2
Marshallv. Chicago Northwestern Transportation Co.,31F.3d 1028, 1032 (10th
Cir. 1994).
https://casetext.com/case/marshall-v-chicago-northwestern-transp-co
Barney v. Burlington Northern R.Co.,490 N.W.2d 726 (S.D.1992).
https://www.courtlistener.com/opinion/2116706/barney-v-burlington-northern-r-co/
City of Aberdeen v.Chicago and Northwestern Transportation,602 F. Supp.589 (D.S.D.1984).
https://www.courtlistener.com/opinion/1633897/city-of-aberdeen-v-chicago-north-western-transp/
Maulerv. Bayfield County,309 F.3d 997 (SeventhCir.2002). http://openjurist.org/309/f3d/997/mauler-
v-bayfield-county
City of Maroa v.Illinois CentralRailroad,229 Ill.App.3d503, 592 N.E.2d660 (1992).
http://www.leagle.com/decision/19921252592NE2d660_11152.xml/CITY%20OF%20MAROA%20v.%20IL
LINOIS%20CENT.%20R.R.
Marlowv.Malone,315 Ill.App.3d897, 734 N.E.2d195 (App.FourthDist.2000).
http://caselaw.findlaw.com/il-court-of-appeals/1417906.html
Hash v. U.S.A.,403 F.3d 1308 (Fed.Cir.Four,2005).
https://a.next.westlaw.com/Document/I01273ad2a3d511d991d0cc6b54f12d4d/View/FullText.html?nav
igationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad705210000014d26e2543df69714
07%3FNav%3DCASE%26fragmentIdentifier%3DI01273ad2a3d511d991d0cc6b54f12d4d%26startIndex%3
tPageSource=af7ab27f34cc96b9d9d9993bbcf60265&list=CASE&rank=1&grading=na&sessionScopeId=f0
30a65a26729ee0a164af35e3dc7bb5&originationContext=Search%20Result&transitionType=SearchItem
&contextData=%28sc.Search%29
Chevy ChaseLand Co.v.United States,733 A.2d1055 (Md.1999).
https://www.courtlistener.com/opinion/1979940/chevy-chase-land-co-v-united-states/
Toewsv. U.S.A.,376 F.3d 1371 (Fed.Cir.2004).
https://a.next.westlaw.com/Document/Ibfc602798ba511d9af17b5c9441c4c47/View/FullText.html?navi

38
gationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad604090000014d2905cf745f66448
5%3FNav%3DCASE%26fragmentIdentifier%3DIbfc602798ba511d9af17b5c9441c4c47%26startIndex%3D
1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&list
PageSource=df042b8e7e582ef0d748b006b87c8db9&list=CASE&rank=1&grading=na&sessionScopeId=b
d40c4b1bff330d916aa35081f2a30c5&originationContext=Search%20Result&transitionType=SearchItem
Caldwell v.U.S.A.,391 F.3d 1226 (Fed.Cir.2004).
https://a.next.westlaw.com/Document/I9efe7f338bc411d99a6fdc806bf1638e/View/FullText.html?navi
gationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad604060000014d2ae0f847e74262d
9%3FNav%3DCASE%26fragmentIdentifier%3DI9efe7f338bc411d99a6fdc806bf1638e%26startIndex%3D1
%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&listP
ageSource=203b2a7c5da0279ef20c1557a47ce14a&list=CASE&rank=1&grading=na&sessionScopeId=5c2
13abbc711b582c6472cdfe3bfdc77&originationContext=Search%20Result&transitionType=SearchItem&
contextData=%28sc.Search%29
Barclay v. United States,443 F.3d 1368 (Fed.Cir.April 11, 2006).
https://a.next.westlaw.com/Document/I9759b4dcc93111da89709aa238bcead9/View/FullText.html?nav
igationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad6040c0000014d2b56a9049d68a6
d4%3FNav%3DCASE%26fragmentIdentifier%3DI9759b4dcc93111da89709aa238bcead9%26startIndex%3
tPageSource=aa3d31d1f23059c629b33fd4fba4efe7&list=CASE&rank=1&grading=na&sessionScopeId=87
8c8de3f7e270cc7a7738ec9ce91cd4&originationContext=Search%20Result&transitionType=SearchItem
“IssuesRelatedtoPreservingInactive Rail LinesasTrails”UnitedStatesGeneral AccountingOffice
10/99. http://atfiles.org/files/pdf/GAO-Preserving-Inactive-Rail-Lines-Trails.pdf
“RailbankingandRail-Trails:A Legacyforthe Future”RailstoTrailsConservancy3/05.
http://atfiles.org/files/pdf/legacyrailbank.pdf
Marvin M.BrandtRevocableTrust v. United States,134 S.Ct.1257 (Supreme Courtof the UnitedStates,
2014).
https://a.next.westlaw.com/Document/I096114a1a83f11e3b58f910794d4f75e/View/FullText.html?navi
gationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad705200000014d307add988b2720
e0%3FNav%3DCASE%26fragmentIdentifier%3DI096114a1a83f11e3b58f910794d4f75e%26startIndex%3
tPageSource=a5dfaf7ba032990918cacf110ba3dc4d&list=CASE&rank=1&grading=na&sessionScopeId=02
2d5acbf9d0e5aa8dd170aa7309ea25&originationContext=Search%20Result&transitionType=SearchItem

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