Reading Around the Internet: October 6, 2014

Welcome to October! This is my favorite month of the year… Fall leaves in my part of the country turn brilliant; temperatures cool down so that I can make stews and soups; and best of all, Halloween comes at the end of the month! (That’s my favorite holiday, so you see, October is my favorite month).

This week’s Reading Around the Internet includes — you guessed it — more about…


A friend posted a link to my FB page recently, and when I followed the link I discovered a whole bunch of fascinating videos put together by DJI, a company that makes drones for aerial photography. It’s part of a series of videos they are putting together called “DJI Feats”.  Since I usually associate drones with military uses, I shied away at first, but then decided I should see what aerial photography with a drone could look like (the nature photographer in me coming out here)… Here’s their YouTube video on the Bardabunga Volcano eruption in Iceland. DJI does some fascinating work, and not just with volcanoes. Check them out! I find myself wishing I could go with them sometime!!


So what do you need to know about Ebola? Here’s some helpful information.  Note that the Ebola virus is not transmitted through the air. You have to come into contact with bodily fluids. And a person is not contagious until they are showing symptoms. This is not a virus that moves easily from one person to the next.

US Supreme Court

Another reason to love October when you study law — the first Monday in October means the Supreme Court is back in session… Here’s a run down from the New York Times concerning the Court’s current docket. Scotusblog also has its summaries up here.  While there isn’t a blockbuster property case on this year’s docket, I know that at least some of our readers — particularly the ones who love to fish — will find Yates v. U.S. (No. 13-7451) interesting. The Court will address whether the prohibition against destroying “any record, document or tangible object” in the Sarbanes-Oxley Act of 2002 applies not only to the white collar crimes the law was originally written to address; but could it also be stretched to include dumping over-sized fish back into the water when you’re about to be cited by a state fish and game officer? At issue here is not simply whether you can destroy evidence in this particular case, but whether Sarbanes-Oxley can be used as a general destruction-of-evidence provision in federal law. See the National Law Journal’s discussion of this case and others on the docket here.

Emergency Management: Preparing for a Possible Oil Spill Along the Mississippi

From Minnesota Public Radio, we have an excellent report on emergency preparations for potential oil spills that many states along the river have been working on. Driving this concern is the large number of crude oil shipments moving along the river and what many experts say is an inevitable emergency waiting to happen: an oil spill in the river’s watershed or the river itself. Many of these shipments travel by rail, but should a train derail and the oil spill, first responders and emergency management officials want to be ready. the MPR story has some excellent photos, and the audio is available at this link.

Learning About the Oceans

The scientific community was excited this week with release of new satellite imagery of the ocean floor that shows many more mountains in the deep than had previously believed to exist. This was story was covered by several news outlets, but the BBC has a particularly good discussion that includes some very interesting maps. For those interested in plate tectonics and the drift of our continents, this is fascinating stuff. For those with access, the news stories are summarizing research that was published in Science, titled “New Global Marine Gravity Model From CryoSat-2 and Jason-1 Reveals Buried Tectonic Structure” (David T. Sandwell, R. Dietmar Muller, Walter H.F. Smith, Emanuel Gracia and Richard Francis). Mind you, whenever we talk about plate tectonics, we are in the realm of earthquakes, volcanoes — and when that happens under the ocean floor, we’re also in the realm of tsunamis.

Brandt: Sometimes An Easement Is Just An Easement


In an 8 to 1 decision this morning, the US Supreme Court decided that the government has no reversionary interest in the right of way at issue in Brandt Revocable Trust v. US. The slip opinion can be found at the Supreme Court website, and of course, a summary of the issues in the case are up at Oyez as well as the Scotusblog. The case is a major victory for property rights advocates. 

As I mentioned in my previous summary of the case, Brandt contended that the right of way granted in an Act in 1875 was an easement, and that once the railroad abandoned their tracks, the underlying land became unburdened by the easement. The Government contended that the right of way granted in the 1875 Act was more than an easement, and reserved “an implied reversionary interest” to the United States in the event that the land, granted to the railroad, was needed in the future. In the opinion for the Court, Chief Justice Roberts points out that the Government lost their case this time largely because they had, in 1942, argued the opposite of their position and had set a precedent that governed the current situation. In Great Northern Railway Co. v. US (315 US 262, 1942) the Government convinced the Court that the 1875 Act granted only an easement. What happens to an easement when it is abandoned, said today’s Court, is well settled in property law: “the easement disappears, and the landowner resumes his full and unencumbered interest in the land” (Majority Opinion, p. 11).

Chief Justice Roberts ends his decision pointing out that the Government’s argument represented a “stark change of position” and then suggests that the importance of settled expectations of the owners of private property motivates at least some of the majority’s thinking today:

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 reversionary interest. We decline to endorse such a stark change of position, especially given ‘the special need for certainty and predictability where land titles are concerned.’”  (Majority Opinion, p. 17)

The lone dissent was filed by Justice Sotomayor who reads Great Northern a little differently. She argues that there were cases in 1903 and 1915 that the Court failed to take into account but are an important part of the context in which Great Northern occurred, and that “in the context of railroad rights of way, traditional property terms like ‘fee’ and ‘easement’ do not neatly track common-law definition.” In fact, she says, if you look at the past understandings of railway lands more broadly, it becomes clear that the Court’s interpretation of Great Northern applies an understanding of easement that developed in a dispute in which the question was quite specific and very different from what is presented in Brandt, i.e., whether the right of way granted in the 1875 act allowed the grantee the right to mine for subsurface minerals (oil, in this case). The Great Northern court said no, that the only right conveyed in the act was a right to use the surface of the land because the right of way was an easement. That finding, Justice Sotomayor says, is about a very different issue than whether the right of way granted a reversionary interest, which, of course, is the issue raised in Brandt. Justice Sotomayor also argues that, with regard to land grants for the railroads such as the one created in the 1875 legislation, ambiguity “is to be resolved favorably to a sovereign grantor.” This principle, she says, also comes out of Great Northern.

Her final point goes to the impact the decision will have on contemporary public policy. Justice Sotomayor points out that the decision made today “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 millions of dollars. I do not believe the law requires this result…” (Dissent, p. 7).

Both Justice Sotomayor and Chief Justice Roberts are correct: this decision should stabilize property title in situations where abandoned railroad tracks cross private property and an easement was granted through the 1875 Act; it will also mean that in those cases, land will have to be purchased, or a new easements will have to be sought for recreational trails through these areas. More litigation may well occur as a result.

For me, I continue to be interested in what all this means for the nature of an easement or a right of way granted through federal legislation. What I am wondering is whether this case suggests that easements and right of ways will be judged according to the specific intent and the extent of the servitude the legislation intended to place upon the land at the time the legislation was drafted. If, in subsequent decades, the federal government interprets the servitude differently from how it was understood at the time of enactment, will such a new interpretation be understood as an over-reach that tries to grant more of a right of way (i.e., a broader right to use) than was intended by the framers of the law? I think this Court will be open to taking a closer look at situations that raise that particular question.