Taking of property when an easement is expanded beyond its original scope

In Marvin M. Brandt Revocable Trust v. United States, 134 S.Ct. 1257 (2014), landowners objected when an easement that had been granted for railroad purposes was converted to a trail for public hiking. An easement is a permanent right to use land owned by another for a specific purpose. State law determines how to interpret the scope of the purpose. Some states interpret a general right of way as not only giving the easement owner the right to pass over the land by walking or driving but a right to install utility lines; other states interpret the scope of the easement narrowly and would view utility lines as exceeding the scope of the easement. In addition, state law determines when an easement ends because of abandonment. Most states find that mere nonuse does not constitute abandonment. However, once state law determines that a use exceeds the scope of the easement or that the easement has ended, the owner of the underlying land has a property right to be free from the intended use of the easement.

In the face of this legal structure, Congress passed a law in 1875 providing railroads rights of way through public lands. Over time, some of those lands were conveyed to private owners; the Brandt family acquired such property in 1976. When the railroad that owned one of those easements formally abandoned the easement, the question arose whether the Brandts owned the property free of the easement or whether title to the land transferred to the United States. The Supreme Court majority held that a prior case had definitively held that the 1875 Act granted the United States the power to convey easements to railroads and that the statute gave no rights in the United States to the underlying land. Id., at 1264 (citing  Great Northern Railway Co. v. United States, 315 U.S. 262 (1942)). Justice Sotomayor dissented because she interpreted the prior case as giving the United States more than a mere easement. Instead, she read the statute and the prior case as giving the railroads a fee simple determinable; once the use ended, title reverted to the United States. Determining whether something is an established property right depends on interpreting the legal documents and rules in force at the time interest was created to determine the existence and scope of the property right.

In contrast to Brandt, the Federal Circuit found no taking when an elevated railway in New York was converted to a linear park. The court in Romanoff Equities, Inc. v. United States, 815 F.3d 809 (Fed. Cir. 2016), found that the language in the 1932 easement was broad enough to encompass various public uses. The easement gave the railroad the right to use the property “for railroad purposes and for such other purposes as the Railroad Company, its successors and assigns, may from time to time or at any time or times desire to make use of the same.” The court found the grant not to limit uses to railroad purposes and rejected the servient estate owner’s claimed right to be free of the park.