Marvin M. Brandt Revocable Trust v. United States

(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MARVIN M. BRANDT REVOCABLE TRUST ET AL. v.
UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 12–1173. Argued January 14, 2014—Decided March 10, 2014
Congress passed the General Railroad Right-of-Way Act of 1875 to pro-
vide railroad companies “right[s] of way through the public lands of
the United States,” 43 U. S. C. §934. One such right of way, obtained
by a railroad in 1908, crosses land that the United States conveyed to
the Brandt family in a 1976 land patent. That patent stated, as rele-
vant here, that the land was granted subject to the railroad’s rights
in the 1875 Act right of way, but it did not specify what would occur if
the railroad later relinquished those rights. Years later, a successor
railroad abandoned the right of way with federal approval. The Gov-
ernment then sought a judicial declaration of abandonment and an
order quieting title in the United States to the abandoned right of
way, including the stretch that crossed the land conveyed in the
Brandt patent. Petitioners contested the claim, asserting that the
right of way was a mere easement that was extinguished when the
railroad abandoned it, so that Brandt now enjoys full title to his land
without the burden of the easement. The Government countered that
the 1875 Act granted the railroad something more than a mere ease-
ment, and that the United States retained a reversionary interest in
that land once the railroad abandoned it. The District Court granted
summary judgment to the Government and quieted title in the Unit-
ed States to the right of way. The Tenth Circuit affirmed.
Held: The right of way was an easement that was terminated by the
railroad’s abandonment, leaving Brandt’s land unburdened. Pp. 8–
17.
(a) The Government loses this case in large part because it won
when it argued the opposite in Great Northern R. Co. v. United
States, 315 U. S. 262. There, the Government contended that the
2 MARVIN M. BRANDT REVOCABLE TRUST v.
UNITED STATES
Syllabus
1875 Act (unlike pre-1871 statutes granting rights of way) granted
nothing more than an easement, and that the railroad in that case
therefore had no interest in the resources beneath the surface of its
right of way. This Court adopted the Government’s position in full.
It found the 1875 Act’s text “wholly inconsistent” with the grant of a
fee interest, id., at 271; agreed with the Government that cases de-
scribing the nature of rights of way granted prior to 1871 were “not
controlling” because of a major shift in congressional policy concern-
ing land grants to railroads after that year, id., at 278; and held that
the 1875 Act “clearly grants only an easement,” id., at 271. Under
well-established common law property principles, an easement dis-
appears when abandoned by its beneficiary, leaving the owner of the
underlying land to resume a full and unencumbered interest in the
land. See Smith v. Townsend, 148 U. S. 490, 499. Pp. 8–12.
(b) The Government asks this Court to limit Great Northern’s char-
acterization of 1875 Act rights of way as easements to the question of
who owns the oil and minerals beneath a right of way. But nothing
in the 1875 Act’s text supports that reading, and the Government’s
reliance on the similarity of the language in the 1875 Act and pre-
1871 statutes directly contravenes the very premise of Great North-
ern: that the 1875 Act granted a fundamentally different interest
than did its predecessor statutes. Nor do this Court’s decisions in
Stalker v. Oregon Short Line R. Co., 225 U. S. 142, and Great North-
ern R. Co. v. Steinke, 261 U. S. 119, support the Government’s posi-
tion. The dispute in each of those cases was framed in terms of com-
peting claims to acquire and develop a particular tract of land, and it
does not appear that the Court considered—much less rejected—an
argument that the railroad had only an easement in the contested
land. But to the extent that those cases could be read to imply that
the interest was something more, any such implication would not
have survived this Court’s unequivocal statement to the contrary in
Great Northern. Finally, later enacted statutes, see 43 U. S. C.
§§912, 940; 16 U. S. C. §1248(c), do not define or shed light on the na-
ture of the interest Congress granted to railroads in their rights of
way in 1875. They instead purport only to dispose of interests (if
any) the United States already possesses. Pp. 12–17.
496 Fed. Appx. 822, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
KENNEDY, THOMAS, GINSBURG, BREYER, ALITO, and KAGAN, JJ., joined.
SOTOMAYOR, J., filed a dissenting opinion.
Cite as: 572 U. S. ____ (2014) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–1173
_________________
MARVIN M. BRANDT REVOCABLE TRUST, ET AL.
PETITIONERS v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[March 10, 2014]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
In the mid-19th century, Congress began granting pri­
vate railroad companies rights of way over public lands to
encourage the settlement and development of the West.
Many of those same public lands were later conveyed by
the Government to homesteaders and other settlers, with
the lands continuing to be subject to the railroads’ rights
of way. The settlers and their successors remained, but
many of the railroads did not. This case presents the
question of what happens to a railroad’s right of way
granted under a particular statute—the General Railroad
Right-of-Way Act of 1875—when the railroad abandons it:
does it go to the Government, or to the private party who
acquired the land underlying the right of way?
I
A
In the early to mid-19th century, America looked west.
The period from the Louisiana Purchase in 1803 to the
Gadsden Purchase in 1853 saw the acquisition of the
western lands that filled out what is now the contiguous
2 MARVIN M. BRANDT REVOCABLE TRUST v.
UNITED STATES
Opinion of the Court
United States.
The young country had numerous reasons to encourage
settlement and development of this vast new expanse.
What it needed was a fast and reliable way to transport
people and property to those frontier lands. New technol­
ogy provided the answer: the railroad. The Civil War
spurred the effort to develop a transcontinental railroad,
as the Federal Government saw the need to protect its
citizens and secure its possessions in the West. Leo Sheep
Co. v. United States, 440 U. S. 668, 674–676 (1979). The
construction of such a railroad would “furnish a cheap and
expeditious mode for the transportation of troops and
supplies,” help develop “the agricultural and mineral
resources of this territory,” and foster settlement. United
States v. Union Pacific R. Co., 91 U. S. 72, 80 (1875).
The substantial benefits a transcontinental railroad
could bring were clear, but building it was no simple
matter. The risks were great and the costs were stagger­
ing. Popular sentiment grew for the Government to play a
role in supporting the massive project. Indeed, in 1860,
President Lincoln’s winning platform proclaimed: “That a
railroad to the Pacific Ocean is imperatively demanded by
the interests of the whole country; that the Federal Gov­
ernment ought to render immediate and efficient aid in its
construction.” J. Ely, Railroads and American Law 51
(2001). But how to do it? Sufficient funds were not at
hand (especially with a Civil War to fight), and there were
serious reservations about the legal authority for direct
financing. “The policy of the country, to say nothing of the
supposed want of constitutional power, stood in the way of
the United States taking the work into its own hands.”
Union Pacific R. Co., supra, at 81.
What the country did have, however, was land—lots of
it. It could give away vast swaths of public land—which at
the time possessed little value without reliable transporta­
tion—in hopes that such grants would increase the appeal
Cite as: 572 U. S. ____ (2014) 3
Opinion of the Court
of a transcontinental railroad to private investors. Ely,
supra, at 52–53. In the early 1860s, Congress began
granting to railroad companies rights of way through the
public domain, accompanied by outright grants of land
along those rights of way. P. Gates, History of Public Land
Law Development 362–368 (1968). The land was con-
veyed in checkerboard blocks. For example, under the
Union Pacific Act of 1862, odd-numbered lots of one square
mile apiece were granted to the railroad, while even­
numbered lots were retained by the United States. Leo
Sheep Co., supra, at 672–673, 686, n. 23. Railroads could
then either develop their lots or sell them, to finance
construction of rail lines and encourage the settlement of
future customers. Indeed, railroads became the largest
secondary dispenser of public lands, after the States.
Gates, supra, at 379.
But public resentment against such generous land
grants to railroads began to grow in the late 1860s. West­
ern settlers, initially some of the staunchest supporters of
governmental railroad subsidization, complained that the
railroads moved too slowly in placing their lands on the
market and into the hands of farmers and settlers. Citi­
zens and Members of Congress argued that the grants
conflicted with the goal of the Homestead Act of 1862 to
encourage individual citizens to settle and develop the
frontier lands. By the 1870s, legislators across the politi­
cal spectrum had embraced a policy of reserving public
lands for settlers rather than granting them to railroads.
Id., at 380, 454–456.
A House resolution adopted in 1872 summed up the
change in national policy, stating:
“That in the judgment of this House the policy of
granting subsidies in public lands to railroads and
other corporations ought to be discontinued, and that
every consideration of public policy and equal justice
4 MARVIN M. BRANDT REVOCABLE TRUST v.
UNITED STATES
Opinion of the Court
to the whole people requires that the public lands
should be held for the purpose of securing homesteads
to actual settlers, and for educational purposes, as
may be provided by law.” Cong. Globe, 42d Cong., 2d
Sess., 1585.
Congress enacted the last checkerboard land-grant statute
for railroads in 1871. Gates, supra, at 380. Still wishing
to encourage railroad construction, however, Congress
passed at least 15 special acts between 1871 and 1875
granting to designated railroads “the right of way”
through public lands, without any accompanying land
subsidy. Great Northern R. Co. v. United States, 315 U. S.
262, 274, and n. 9 (1942).
Rather than continue to enact special legislation for
each such right of way, Congress passed the General
Railroad Right-of-Way Act of 1875, 18 Stat. 482, 43
U. S. C. §§934–939. The 1875 Act provided that “[t]he
right of way through the public lands of the United States
is granted to any railroad company” meeting certain re­
quirements, “to the extent of one hundred feet on each side
of the central line of said road.” §934. A railroad company
could obtain a right of way by the “actual construction of
its road” or “in advance of construction by filing a map as
provided in section four” of the Act. Jamestown & North-
ern R. Co. v. Jones, 177 U. S. 125, 130–131 (1900). Section
4 in turn provided that a company could “secure” its right
of way by filing a proposed map of its rail corridor with a
local Department of the Interior office within 12 months
after survey or location of the road. §937. Upon approval
by the Interior Department, the right of way would be
noted on the land plats held at the local office, and from
that day forward “all such lands over which such right of
way shall pass shall be disposed of subject to the right
of way.” Ibid.
The 1875 Act remained in effect until 1976, when its
Cite as: 572 U. S. ____ (2014) 5
Opinion of the Court
provisions governing the issuance of new rights of way
were repealed by the Federal Land Policy and Manage­
ment Act, §706(a), 90 Stat. 2793. This case requires us to
define the nature of the interest granted by the 1875 Act,
in order to determine what happens when a railroad
abandons its right of way.
B
Melvin M. Brandt began working at a sawmill in Fox
Park, Wyoming, in 1939. He later purchased the sawmill
and, in 1946, moved his family to Fox Park. Melvin’s son
Marvin started working at the sawmill in 1958 and came
to own and operate it in 1976 until it closed, 15 years
later.
In 1976, the United States patented an 83-acre parcel of
land in Fox Park, surrounded by the Medicine Bow-Routt
National Forest, to Melvin and Lulu Brandt. (A land
patent is an official document reflecting a grant by a
sovereign that is made public, or “patent.”) The patent
conveyed to the Brandts fee simple title to the land “with
all the rights, privileges, immunities, and appurtenances,
of whatsoever nature, thereunto belonging, unto said
claimants, their successors and assigns, forever.” App. to
Pet. for Cert. 76. But the patent did include limited excep­
tions and reservations. For example, the patent “except[s]
and reserv[es] to the United States from the land granted
a right-of-way thereon for ditches or canals constructed
by the authority of the United States”; “reserv[es] to the
United States . . . a right-of-way for the existing Platte
Access Road No. 512”; and “reserv[es] to the United States
. . . a right-of-way for the existing Dry Park Road No. 517.”
Id., at 76–77 (capitalization omitted). But if those roads
cease to be used by the United States or its assigns for a
period of five years, the patent provides that “the ease­
ment traversed thereby shall terminate.” Id., at 78.
Most relevant to this case, the patent concludes by
6 MARVIN M. BRANDT REVOCABLE TRUST v.
UNITED STATES
Opinion of the Court
stating that the land was granted “subject to those rights for
railroad purposes as have been granted to the Lar­
amie[,] Hahn’s Peak & Pacific Railway Company, its suc­
cessors or assigns.” Ibid. (capitalization omitted). The
patent did not specify what would occur if the railroad
abandoned this right of way.
The right of way referred to in the patent was obtained
by the Laramie, Hahn’s Peak and Pacific Railroad
(LHP&P) in 1908, pursuant to the 1875 Act.1 The right of
way is 66 miles long and 200 feet wide, and it meanders
south from Laramie, Wyoming, through the Medicine
Bow-Routt National Forest, to the Wyoming-Colorado
border. Nearly a half-mile stretch of the right of way
crosses Brandt’s land in Fox Park, covering ten acres of
that parcel.
In 1911, the LHP&P completed construction of its rail­
way over the right of way, from Laramie to Coalmont,
Colorado. Its proprietors had rosy expectations, proclaim­
ing that it would become “one of the most important rail­
road systems in this country.” Laramie, Hahns Peak and
Pacific Railway System: The Direct Gateway to Southern
Wyoming, Northern Colorado, and Eastern Utah 24
(1910). But the railroad ultimately fell short of that goal.
Rather than shipping coal and other valuable ores as
originally hoped, the LHP&P was used primarily to
transport timber and cattle. R. King, Trails to Rails: A
History of Wyoming’s Railroads 90 (2003). Largely be­
cause of high operating costs during Wyoming winters, the
LHP&P never quite achieved financial stability. It
changed hands numerous times from 1914 until 1935,
when it was acquired by the Union Pacific Railroad at the
——————
1 Locals
at the time translated the acronym LHP&P as “Lord Help
Push and Pull” or “Late, Hard Pressed, and Panicky.” S. Thybony, R.
Rosenberg, & E. Rosenberg, The Medicine Bows: Wyoming’s Mountain
Country 136 (1985).
Cite as: 572 U. S. ____ (2014) 7
Opinion of the Court
urging of the Interstate Commerce Commission. Ibid.; S.
Thybony, R. Rosenberg, & E. Rosenberg, The Medicine
Bows: Wyoming’s Mountain Country 136–138 (1985);
F. Hollenback, The Laramie Plains Line 47–49 (1960).
In 1987, the Union Pacific sold the rail line, including
the right of way, to the Wyoming and Colorado Railroad,
which planned to use it as a tourist attraction. King,
supra, at 90. That did not prove profitable either, and in
1996 the Wyoming and Colorado notified the Surface
Transportation Board of its intent to abandon the right of
way. The railroad tore up the tracks and ties and, after
receiving Board approval, completed abandonment in
2004. In 2006 the United States initiated this action
seeking a judicial declaration of abandonment and an
order quieting title in the United States to the abandoned
right of way. In addition to the railroad, the Government
named as defendants the owners of 31 parcels of land
crossed by the abandoned right of way.
The Government settled with or obtained a default
judgment against all but one of those landowners—Marvin
Brandt. He contested the Government’s claim and filed a
counterclaim on behalf of a family trust that now owns the
Fox Park parcel, and himself as trustee.2 Brandt asserted
that the stretch of the right of way crossing his family’s
land was a mere easement that was extinguished upon
abandonment by the railroad, so that, under common law
property rules, he enjoyed full title to the land without the
burden of the easement. The Government countered that
it had all along retained a reversionary interest in the
railroad right of way—that is, a future estate that would
be restored to the United States if the railroad abandoned
——————
2 The other landowners had a potential interest in much smaller
acreages: No other party could claim an interest in more than three
acres of the right of way, and only six of the 31 potential claims
amounted to more than one acre. See Amended Complaint in No. 06–
CV–0184J etc. (D Wyo.), ¶¶6–10.
8 MARVIN M. BRANDT REVOCABLE TRUST v.
UNITED STATES
Opinion of the Court
or forfeited its interest.
The District Court granted summary judgment to the
Government and quieted title in the United States to the
right of way over Brandt’s land. 2008 WL 7185272 (D
Wyo., Apr. 8, 2008).3 The Court of Appeals affirmed.
United States v. Brandt, 496 Fed. Appx. 822 (CA10 2012)
(per curiam). The court acknowledged division among
lower courts regarding the nature of the Government’s
interest (if any) in abandoned 1875 Act rights of way. But
it concluded based on Circuit precedent that the United
States had retained an “implied reversionary interest” in
the right of way, which then vested in the United States
when the right of way was relinquished. Id., at 824.
We granted certiorari. 570 U. S. __ (2013).
II
This dispute turns on the nature of the interest the
United States conveyed to the LHP&P in 1908 pursuant
to the 1875 Act. Brandt contends that the right of way
granted under the 1875 Act was an easement, so that
when the railroad abandoned it, the underlying land
(Brandt’s Fox Park parcel) simply became unburdened of
the easement. The Government does not dispute that
easements normally work this way, but maintains that the
1875 Act granted the railroads something more than an
easement, reserving an implied reversionary interest in
that something more to the United States. The Govern­
ment loses that argument today, in large part because it
won when it argued the opposite before this Court more
than 70 years ago, in the case of Great Northern Railway
Co. v. United States, 315 U. S. 262 (1942).
In 1907, Great Northern succeeded to an 1875 Act right
——————
3 TheDistrict Court dismissed without prejudice Brandt’s separate
counterclaim for just compensation. Brandt then filed a takings claim
in the Court of Federal Claims. That case has been stayed pending the
disposition of this one.
Cite as: 572 U. S. ____ (2014) 9
Opinion of the Court
of way that ran through public lands in Glacier County,
Montana. Oil was later discovered in the area, and Great
Northern wanted to drill beneath its right of way. But
the Government sued to enjoin the railroad from doing
so, claiming that the railroad had only an easement, so
that the United States retained all interests beneath the
surface.
This Court had indeed previously held that the pre-1871
statutes, granting rights of way accompanied by checker­
board land subsidies, conveyed to the railroads “a limited
fee, made on an implied condition of reverter.” See, e.g.,
Northern Pacific R. Co. v. Townsend, 190 U. S. 267, 271
(1903). Great Northern relied on those cases to contend
that it owned a “fee” interest in the right of way, which
included the right to drill for minerals beneath the
surface.
The Government disagreed. It argued that “the 1875
Act granted an easement and nothing more,” and that the
railroad accordingly could claim no interest in the re­
sources beneath the surface. Brief for United States in
Great Northern R. Co. v. United States, O. T. 1941, No.
149, p. 29. “The year 1871 marks the end of one era and
the beginning of a new in American land-grant history,”
the Government contended; thus, cases construing the
pre-1871 statutes were inapplicable in construing the 1875
Act, id., at 15, 29–30. Instead, the Government argued,
the text, background, and subsequent administrative and
congressional construction of the 1875 Act all made clear
that, unlike rights of way granted under pre-1871 land­
grant statutes, those granted under the 1875 Act were
mere easements.
The Court adopted the United States’ position in full,
holding that the 1875 Act “clearly grants only an ease­
ment, and not a fee.” Great Northern, 315 U. S., at 271.
The Court found Section 4 of the Act “especially persua­
sive,” because it provided that “all such lands over which
10 MARVIN M. BRANDT REVOCABLE TRUST v.
UNITED STATES
Opinion of the Court
such right of way shall pass shall be disposed of subject to
such right of way.” Ibid. Calling this language “wholly
inconsistent” with the grant of a fee interest, the Court
endorsed the lower court’s statement that “[a]pter words
to indicate the intent to convey an easement would be
difficult to find.” Ibid.That interpretation was confirmed, the Court explained,
by the historical background against which the 1875 Act
was passed and by subsequent administrative and con­
gressional interpretation. The Court accepted the Gov­
ernment’s position that prior cases describing the nature
of pre-1871 rights of way—including Townsend, supra, at
271—were “not controlling,” because of the shift in con­
gressional policy after that year. Great Northern, supra,
at 277–278, and n. 18. The Court also specifically disa­
vowed the characterization of an 1875 Act right of way in
Rio Grande Western R. Co. v. Stringham, 239 U. S. 44(1915), as “ ‘a limited fee, made on an implied condition of
reverter.’ ” Great Northern, supra, at 278–279 (quoting
Stringham, supra, at 47). The Court noted that in String-
ham “it does not appear that Congress’ change of policy
after 1871 was brought to the Court’s attention,” given
that “[n]o brief was filed by the defendant or the United
States” in that case. Great Northern, supra, at 279, and
n. 20.
The dissent is wrong to conclude that Great Northern
merely held that “the right of way did not confer one
particular attribute of fee title.” Post, at 3 (opinion
of SOTOMAYOR, J.). To the contrary, the Court specifically
rejected the notion that the right of way conferred even a
“limited fee.” 315 U. S., at 279; see also id., at 277–278
(declining to follow cases describing a right of way as a
“limited,” “base,” or “qualified” fee). Instead, the Court
concluded, it was “clear from the language of the Act, its
legislative history, its early administrative interpretation
and the construction placed upon it by Congress in subse­
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Opinion of the Court
quent enactments” that the railroad had obtained “only an
easement in its rights of way acquired under the Act of
1875.” Id., at 277; see United States v. Union Pacific R.
Co., 353 U. S. 112, 119 (1957) (noting the conclusion in
Great Northern that, in the period after 1871, “only an
easement for railroad purposes was granted”); 353 U. S.,
at 128 (Frankfurter, J., dissenting) (observing that the
Court “conclude[d] in the Great Northern case that a right
of way granted by the 1875 Act was an easement and not a
limited fee”).
When the United States patented the Fox Park parcel to
Brandt’s parents in 1976, it conveyed fee simple title to
that land, “subject to those rights for railroad purposes”
that had been granted to the LHP&P. The United States
did not reserve to itself any interest in the right of way in
that patent. Under Great Northern, the railroad thus had
an easement in its right of way over land owned by the
Brandts.
The essential features of easements—including, most
important here, what happens when they cease to be
used—are well settled as a matter of property law. An
easement is a “nonpossessory right to enter and use land
in the possession of another and obligates the possessor
not to interfere with the uses authorized by the easement.”
Restatement (Third) of Property: Servitudes §1.2(1)
(1998). “Unlike most possessory estates, easements . . .
may be unilaterally terminated by abandonment, leaving
the servient owner with a possessory estate unencum­
bered by the servitude.” Id., §1.2, Comment d; id., §7.4,
Comments a, f. In other words, if the beneficiary of the
easement abandons it, the easement disappears, and the
landowner resumes his full and unencumbered interest in
the land. See Smith v. Townsend, 148 U. S. 490, 499
(1893) (“[W]hoever obtained title from the government to
any . . . land through which ran this right of way would
acquire a fee to the whole tract subject to the easement of
12 MARVIN M. BRANDT REVOCABLE TRUST v.
UNITED STATES
Opinion of the Court
the company, and if ever the use of that right of way was
abandoned by the railroad company the easement would
cease, and the full title to that right of way would vest in
the patentee of the land”); 16 Op. Atty. Gen. 250, 254
(1879) (“the purchasers or grantees of the United States
took the fee of the lands patented to them subject to the
easement created by the act of 1824; but on a discontinu­
ance or abandonment of that right of way the entire and
exclusive property, and right of enjoyment thereto, vested
in the proprietors of the soil”).4
Those basic common law principles resolve this case.
When the Wyoming and Colorado Railroad abandoned the
right of way in 2004, the easement referred to in the
Brandt patent terminated. Brandt’s land became unbur­
dened of the easement, conferring on him the same full
rights over the right of way as he enjoyed over the rest of
the Fox Park parcel.
III
Contrary to that straightforward conclusion, the Gov­
ernment now tells us that Great Northern did not really
mean what it said. Emphasizing that Great Northern
involved only the question of who owned the oil and min-
——————
4 Because granting an easement merely gives the grantee the right to
enter and use the grantor’s land for a certain purpose, but does not give
the grantee any possessory interest in the land, it does not make sense
under common law property principles to speak of the grantor of an
easement having retained a “reversionary interest.” A reversionary
interest is “any future interest left in a transferor or his successor in
interest.” Restatement (First) of Property §154(1)(1936). It arises
when the grantor “transfers less than his entire interest” in a piece of
land, and it is either certain or possible that he will retake the trans­
ferred interest at a future date. Id., Comment a. Because the grantor
of an easement has not transferred his estate or possessory interest, he
has not retained a reversionary interest. He retains all his ownership
interest, subject to an easement. See Preseault v. United States, 100
F. 3d 1525, 1533–1534 (CA Fed. 1996) (en banc).
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Opinion of the Court
erals beneath a right of way, the Government asks the
Court to limit its characterization of 1875 Act rights of
way as “easements” to that context. Even if the right of
way has some features of an easement—such as granting
only a surface interest to the railroad when the Govern­
ment wants the subsurface oil and minerals—the Gov­
ernment asks us to hold that the right of way is not an
easement for purposes of what happens when the railroad
stops using it. But nothing in the text of the 1875 Act
supports such an improbable (and self-serving) reading.
The Government argues that the similarity in the lan­
guage of the 1875 Act and the pre-1871 statutes shows
that Congress intended to reserve a reversionary interest
in the lands granted under the 1875 Act, just as it did in
the pre-1871 statutes. See Brief for United States 17–18.
But that is directly contrary to the very premise of this
Court’s decision (and the Government’s argument) in
Great Northern: that the 1875 Act granted a fundamen-
tally different interest in the rights of way than did the
predecessor statutes. 315 U. S., at 277–278; see U. S.
Great Northern Brief 30 (“[Great Northern’s] argument . . .
fails because it disregards the essential differences be­
tween the 1875 Act and its predecessors.”). Contrary to
the Government’s position now—but consistent with the
Government’s position in 1942—Great Northern stands for
the proposition that the pre-1871 statutes (and this
Court’s decisions construing them) have little relevance to
the question of what interest the 1875 Act conveyed to
railroads.
The Government next contends that this Court’s deci­
sions in Stalker v. Oregon Short Line R. Co., 225 U. S. 142(1912), and Great Northern R. Co. v. Steinke, 261 U. S. 119(1923), support its position that the United States retains
an implied reversionary interest in 1875 Act rights of way.
Brief for United States 28–32. According to the Govern­
ment, both Stalker and Steinke demonstrate that those
14 MARVIN M. BRANDT REVOCABLE TRUST v.
UNITED STATES
Opinion of the Court
rights of way cannot be bare common law easements,
because those cases concluded that patents purporting to
convey the land underlying a right of way were “inopera­
tive to pass title.” Brief for United States 31 (quoting
Steinke, supra, at 131); see also Tr. of Oral Arg. 28–30, 33,
40–41, 44–45. If the right of way were a mere easement,
the argument goes, the patent would have passed title to
the underlying land subject to the railroad’s right of way,
rather than failing to pass title altogether. But that is a
substantial overreading of those cases.
In both Stalker and Steinke, a railroad that had already
obtained an 1875 Act right of way thereafter claimed
adjacent land for station grounds under the Act, as it was
permitted to do because of its right of way. A homesteader
subsequently filed a claim to the same land, unaware of
the station grounds. The question in each case was
whether the railroad could build on the station grounds,
notwithstanding a subsequent patent to the homesteader.
The homesteader claimed priority because the railroad’s
station grounds map had not been recorded in the local
land office at the time the homesteader filed his claim.
This Court construed the 1875 Act to give the railroad
priority because it had submitted its proposed map to the
Department of the Interior before the homesteader filed
his claim. See Stalker, supra, at 148–154; Steinke, supra,at 125–129.
The dispute in each case was framed in terms of compet­
ing claims to the right to acquire and develop the same
tract of land. The Court ruled for the railroad, but did not
purport to define the precise nature of the interest granted
under the 1875 Act. Indeed, it does not appear that the
Court in either case considered—much less rejected—an
argument that the railroad had obtained only an easement
in the contested land, so that the patent could still convey
title to the homesteader. In any event, to the extent that
Stalker and Steinke could be read to imply that the rail­
Cite as: 572 U. S. ____ (2014) 15
Opinion of the Court
roads had been granted something more than an ease­
ment, any such implication would not have survived this
Court’s unequivocal statement in Great Northern that the
1875 Act “clearly grants only an easement, and not a fee.”
315 U. S., at 271.
Finally, the Government relies on a number of later
enacted statutes that it says demonstrate that Congress
believed the United States had retained a reversionary
interest in the 1875 Act rights of way. Brief for United
States 34–42. But each of those statutes purported only to
dispose of interests the United States already possessed,
not to create or modify any such interests in the first
place. First, in 1906 and 1909, Congress declared forfeited
any right of way on which a railroad had not been con­
structed in the five years after the location of the road. 43
U. S. C. §940. The United States would “resume[ ] the full
title to the lands covered thereby free and discharged of
such easement,” but the forfeited right of way would im­
mediately “inure to the benefit of any owner or owners of
land conveyed by the United States prior to such date.”
Ibid.Then, in 1922, Congress provided that whenever a
railroad forfeited or officially abandoned its right of way,
“all right, title, interest, and estate of the United States
in said lands” (other than land that had been converted
to a public highway) would immediately be transferred to
either the municipality in which it was located, or else to
the person who owned the underlying land. 43 U. S. C.
§912. Finally, as part of the National Trails System Im­
provements Act of 1988, Congress changed course and
sought to retain title to abandoned or forfeited railroad
rights of way, specifying that “any and all right, title,
interest, and estate of the United States” in such rights of
way “shall remain in the United States” upon abandon­
ment or forfeiture. 16 U. S. C. §1248(c).
The Government argues that these statutes prove that
16 MARVIN M. BRANDT REVOCABLE TRUST v.
UNITED STATES
Opinion of the Court
Congress intended to retain (or at least believed it had
retained) a reversionary interest in 1875 Act rights of way.
Otherwise, the argument goes, these later statutes provid­
ing for the disposition of the abandoned or forfeited strips
of land would have been meaningless. That is wrong.
This case turns on what kind of interest Congress granted
to railroads in their rights of way in 1875. Cf. Leo Sheep
Co., 440 U. S., at 681 (“The pertinent inquiry in this case
is the intent of Congress when it granted land to the Un­
ion Pacific in 1862.”). Great Northern answered that
question: an easement. The statutes the Government cites
do not purport to define (or redefine) the nature of the
interest conveyed under the 1875 Act. Nor do they shed
light on what kind of property interest Congress intended
to convey to railroads in 1875. See United States v. Price,
361 U. S. 304, 313 (1960) (“the views of a subsequent
Congress form a hazardous basis for inferring the intent of
an earlier one”).
In other words, these statutes do not tell us whether the
United States has an interest in any particular right of
way; they simply tell us how any interest the United
States might have should be disposed of. For pre-1871
rights of way in which the United States retained an
implied reversionary interest, or for rights of way crossing
public lands, these statutes might make a difference in
what happens to a forfeited or abandoned right of way.
But if there is no “right, title, interest, [or] estate of the
United States” in the right of way, 43 U. S. C. §912, then
the statutes simply do not apply.
We cannot overlook the irony in the Government’s ar­
gument based on Sections 912 and 940. Those provisions
plainly evince Congress’s intent to divest the United
States of any title or interest it had retained to railroad
rights of way, and to vest that interest in individuals to
whom the underlying land had been patented—in other
words, people just like the Brandts. It was not until
Cite as: 572 U. S. ____ (2014) 17
Opinion of the Court
1988—12 years after the United States patented the Fox
Park parcel to the Brandts—that Congress did an about­
face and attempted to reserve the rights of way to the
United States. That policy shift cannot operate to create
an interest in land that the Government had already given
away.5
* * *
More than 70 years ago, the Government argued before
this Court that a right of way granted under the 1875 Act
was a simple easement. The Court was persuaded, and so
ruled. Now the Government argues that such a right of
way is tantamount to a limited fee with an implied rever­
sionary interest. We decline to endorse such a stark
change in position, especially given “the special need for
certainty and predictability where land titles are con­
cerned.” Leo Sheep Co., supra, at 687.
The judgment of the United States Court of Appeals for
the Tenth Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
——————
5 The dissent invokes the principle that “any ambiguity in land grants
‘is to be resolved favorably to a sovereign grantor,’ ” post, at 1 (quoting
Great Northern R. Co. v. United States, 315 U. S. 262, 272 (1942)), but
the Solicitor General does not—for a very good reason. The Govern­
ment’s argument here is that it gave away more in the land grant than
an easement, so that more should revert to it now. A principle that
ambiguous grants should be construed in favor of the sovereign hurts
rather than helps that argument. The dissent’s quotation is indeed
from Great Northern, where the principle was cited in support of the
Government’s argument that its 1875 Act grant conveyed “only an
easement, and not a fee.” Id., at 271.
Cite as: 572 U. S. ____ (2014) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–1173
_________________
MARVIN M. BRANDT REVOCABLE TRUST, ET AL.
PETITIONERS v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[March 10, 2014]
JUSTICE SOTOMAYOR, dissenting.
The Court bases today’s holding almost entirely on
Great Northern R. Co. v. United States, 315 U. S. 262, 271
(1942), and its conclusion that the General Railroad Right-
of-Way Act of 1875 granted “only an easement, and not a
fee,” to a railroad possessing a right of way. The Court
errs, however, in two ways. First, it does not meaningfully
grapple with prior cases—Northern Pacific R. Co. v. Town-
send, 190 U. S. 267, 271 (1903), and Rio Grande Western
R. Co. v. Stringham, 239 U. S. 44, 47 (1915)—that ex-
pressly concluded that the United States retained a rever-
sionary interest in railroad rights of way. To the extent
the Court regards Great Northern as having abrogated
these precedents, it places on Great Northern more weight
than that case will bear. Second, the Court relies on
“basic common law principles,” ante, at 12, without recog-
nizing that courts have long treated railroad rights of way
as sui generis property rights not governed by the ordinary
common-law regime. Because Townsend and Stringham
largely dictate the conclusion that the Government re-
tained a reversionary interest when it granted the right of
way at issue, and because any ambiguity in land grants “is
to be resolved favorably to a sovereign grantor,” Great
Northern, 315 U. S., at 272, I respectfully dissent.
2 MARVIN M. BRANDT REVOCABLE TRUST v.
UNITED STATES
SOTOMAYOR, J., dissenting
I
Over a century ago, this Court held that a right of way
granted to a railroad by a pre-1871 Act of Congress in-
cluded “an implied condition of reverter” to the Govern-
ment if the right of way ceased to be used “for the purpose
for which it was granted.” Northern Pacific R. Co. v.
Townsend, 190 U. S. 267, 271 (1903). The question in
Townsend was whether individual homesteaders could
acquire title by adverse possession to land granted by the
United States as a railroad right of way. The Court held
that they could not, because “the land forming the right of
way was not granted with the intent that it might be
absolutely disposed of at the volition of the company.”
Ibid. “On the contrary,” the Court held, “the grant was
explicitly stated to be for a designated purpose, one which
negated the existence of the power to voluntarily alienate
the right of way or any portion thereof.” Ibid. Hence the
“implied condition of reverter in the event that the com-
pany ceased to use or retain the land for the purpose for
which it was granted.” Ibid. In essence, the Court held,
“the grant was of a limited fee,” ibid.—commonly known
as a defeasible fee, see Restatement (First) of Property §16
(1936)—rather than fee simple. Thus, if the railroad were
to abandon its use of the right of way, the property would
revert to the United States.
The Court later confirmed in Rio Grande Western R. Co.
v. Stringham, 239 U. S. 44, 47 (1915), that this rule ap-
plies not just to pre-1871 land grants to railroads, but also
to rights of way granted under the General Railroad
Right-of-Way Act—the Act under which the United States
granted the right of way at issue in this case. That case
stated that rights of way granted under the 1875 Act are
“made on an implied condition of reverter in the event that
the company ceases to use or retain the land for the pur-
poses for which it is granted.” Ibid. Indeed, Stringham
Cite as: 572 U. S. ____ (2014) 3
SOTOMAYOR, J., dissenting
sustained the validity of the reverter where, as here, the
United States patented the adjacent land “subject to [the]
right of way.” Id., at 46. If Townsend and Stringham
remain good law on that point, then this case should be
resolved in the Government’s favor.
II
A
This case therefore turns on whether, as the majority
asserts, Great Northern “disavowed” Townsend and
Stringham as to the question whether the United States
retained a reversionary interest in the right of way. Ante,
at 10. Great Northern did no such thing. Nor could it
have, for the Court did not have occasion to consider that
question.
In Great Northern, a railroad sought to drill for oil
beneath the surface of a right of way granted under the
1875 Act. We held that the railroad had no right to drill,
because the United States did not convey the underlying
oil and minerals when it granted the railroad a right of
way. In language on which the Court relies heavily, Great
Northern opined that the 1875 Act granted the railroad
“only an easement, and not a fee.” 315 U. S., at 271.
But that language does not logically lead to the place at
which the majority ultimately arrives. All that Great
Northern held—all, at least, that was necessary to its
ruling—was that the right of way did not confer one par-
ticular attribute of fee title. Specifically, the Court held,
the right of way did not confer the right to exploit subter-
ranean resources, because the 1875 Act could not have
made clearer that the right of way extended only to sur-
face lands: It provided that after the recordation of a right
of way, “all . . . lands over which such right of way shall
pass shall be disposed of subject to such right of way.”
Ibid. (second emphasis and internal quotation marks
omitted). But the Court did not hold that the right of way
4 MARVIN M. BRANDT REVOCABLE TRUST v.
UNITED STATES
SOTOMAYOR, J., dissenting
failed to confer any sticks in the proverbial bundle of
rights generally associated with fee title. Cf. B. Cardozo,
The Paradoxes of Legal Science 129 (1928) (reprint 2000);
United States v. Craft, 535 U. S. 274, 278 (2002). And this
case concerns an attribute of fee title—defeasibility—that
no party contends was at issue in Great Northern.
The majority places heavy emphasis on Great Northern’s
characterization of rights of way under the 1875 Act as
“easements,” rather than “limited fees.” When an ease-
ment is abandoned, the majority reasons, it is extin-
guished; in effect, it reverts to the owner of the underlying
estate, rather than to its original grantor. Ante, at 11–12.
For that reason, the majority concludes, “basic common
law principles” require us to retreat from our prior hold-
ings that railroad rights of way entail an implied possibil-
ity of reverter to the original grantor—the United States—
should the right of way cease to be used by a railroad for
its intended purpose. Ante, at 12.
But federal and state decisions in this area have not
historically depended on “basic common law principles.”
To the contrary, this Court and others have long recog-
nized that in the context of railroad rights of way, tradi-
tional property terms like “fee” and “easement” do not
neatly track common-law definitions. In Stringham, the
Court articulated ways in which rights of ways bear at-
tributes both of easements and fees, explaining that “[t]he
right of way granted by [the 1875 Act] and similar acts is
neither a mere easement, nor a fee simple absolute.” 239
U. S., at 47. In New Mexico v. United States Trust Co.,
172 U. S. 171, 182–183 (1898), the Court further observed
that even if a particular right of way granted by the United
States was an “easement,” then it was “surely more
than an ordinary easement” because it had “attributes of
the fee” like exclusive use and possession. See also West-
ern Union Telegraph Co. v. Pennsylvania R. Co., 195 U. S.
540, 569–570 (1904) (reaffirming this view). Earlier, in
Cite as: 572 U. S. ____ (2014) 5
SOTOMAYOR, J., dissenting
1854, the Massachusetts Supreme Judicial Court had
explained that although the right acquired by a railroad
was “technically an easement,” it “require[d] for its enjoy-
ment a use of the land permanent in its nature and practi-
cally exclusive.” Hazen v. Boston and Me. R. Co., 68 Mass.
574, 580 (1854). And the Iowa Supreme Court, in a late
19th-century opinion, observed that “[t]he easement” in
question “is not that spoken of in the old law books, but is
peculiar to the use of a railroad.” Smith v. Hall, 103 Iowa
95, 96, 72 N. W. 427, 428 (1897).
Today’s opinion dispenses with these teachings. Al-
though the majority canvasses the special role railroads
played in the development of our Nation, it concludes that
we are bound by the common-law definitions that apply to
more typical property. In doing so, it ignores the sui
generis nature of railroad rights of way. That Great
Northern referred to a right of way granted under the
1875 Act as an “easement” does not derail the Court’s
previous unequivocal pronouncements that rights of way
under the Act are “made on an implied condition of re-
verter.” Stringham, 239 U. S., at 47.
B
Not only does Great Northern fail to support the major-
ity’s conclusion; significant aspects of Great Northern’s
reasoning actually support the contrary view. In that
case, the Court relied heavily on Congress’ policy shift in
the early 1870’s away from bestowing extravagant “ ‘sub-
sidies in public lands to railroads and other corporations.’ ”
315 U. S., at 273–274 (quoting Cong. Globe, 42d Cong., 2d
Sess., 1585 (1872)). That history similarly weighs in the
Government’s favor here. Just as the post-1871 Congress
did not likely mean to confer subsurface mineral rights on
railroads, as held in Great Northern, it did not likely mean
to grant railroads an indefeasible property interest in
rights of way—a kind of interest more generous than that
6 MARVIN M. BRANDT REVOCABLE TRUST v.
UNITED STATES
SOTOMAYOR, J., dissenting
which it gave in our cases concerning pre-1871 grants.
As in Great Northern, moreover, the purpose of the 1875
Act supports the Government. Congress passed the Act,
we noted, “to permit the construction of railroads through
public lands” and thus to “enhance their value and hasten
their settlement.” 315 U. S., at 272. In Great Northern,
we held, that purpose did not require granting to the
railroad any right to that which lay beneath the surface.
The same is true here. As we recognized in Townsend and
Stringham, the United States granted rights of way to
railroads subject to “an implied condition of reverter in the
event that the” railroads “cease[d] to use or retain the land
for the purposes for which it is granted.” Stringham, 239
U. S., at 47. Nothing about the purpose of the 1875 Act
suggests Congress ever meant to abandon that sensible
limitation.
Further, Great Northern relied on the conventional rule
that “a grant is to be resolved favorably to a sovereign
grantor,” 315 U. S., at 272, and that “ ‘nothing passes but
what is conveyed in clear and explicit language,’ ” ibid.(quoting Caldwell v. United States, 250 U. S. 14, 20
(1919)). “Nothing in the [1875] Act,” we observed, “may be
characterized as a ‘clear and explicit’ conveyance of the . . .
oil and minerals” underlying a right of way. 315 U. S.,
at 272. Just so here, as nothing in the 1875 Act clearly
evinces Congress’ intent not to make the rights of way
conveyed under the Act defeasible, in the manner de-
scribed by Townsend and Stringham. In fact, the pre-
sumption in favor of sovereign grantors applies doubly
here, where the United States was the sovereign grantor
both of the right of way and of the ultimate patent.
III
The majority notes that in Great Northern, the United
States took the position that rights of way granted to
railroads are easements. Ante, at 9. In the majority’s
Cite as: 572 U. S. ____ (2014) 7
SOTOMAYOR, J., dissenting
view, because the Great Northern Court adopted that
position “in full,” it is unfair for the Government to back-
track on that position now. Ante, at 9.
Even assuming that it is an injustice for the Govern-
ment to change positions on an issue over a 70-year period,
it is not clear that such a change in position happened
here. Yes, the Government argued in Great Northern that
a right of way was an “easement.” It proposed, however,
that the right of way may well have had “some of the
attributes of a fee.” Brief for United States in Great
Northern R. Co. v. United States, O. T. 1941, No. 149,
pp. 36–37. The Government contended that it is “ ‘not
important whether the interest or estate passed be consid-
ered an easement or a limited fee,’ ” observing that an
easement “may be held in fee determinable.” Id., at 35–36
(quoting United States v. Big Horn Land & Cattle Co., 17
F. 2d 357, 365 (CA8 1927)). Indeed, the Government
expressly reserved the possibility that it retained a rever-
sionary interest in the right of way, even if the surround-
ing land was patented to others. Brief for United States in
Great Northern, at 10 n. 4. The Court is right to criticize
the Government when it takes “self-serving” and contra-
dictory positions, ante, at 12, but such critique is mis-
placed here.
* * *
Since 1903, this Court has held that rights of way were
granted to railroads with an implied possibility of reverter
to the United States. Regardless of whether these rights
of way are labeled “easements” or “fees,” nothing in Great
Northern overruled that conclusion. By changing course
today, the Court undermines the legality of thousands of
miles of former rights of way that the public now enjoys as
means of transportation and recreation. And lawsuits
challenging the conversion of former rails to recreational
trails alone may well cost American taxpayers hundreds of
8 MARVIN M. BRANDT REVOCABLE TRUST v.
UNITED STATES
SOTOMAYOR, J., dissenting
millions of dollars.* I do not believe the law requires this
result, and I respectfully dissent.
——————
* Dept. of Justice, Environment and Natural Resources Div., FY
2014 Performance Budget, Congressional Submission, p. 7, http://
www.justice.gov/jmd/2014justification/pdf/enrd-justification.pdf (visited
Mar. 7, 2014, and available in Clerk of Court’s case file).