Traveling… But, Before I Go… Easements… 1

I will be traveling this week, and so our Thursday post may be moved to Friday depending upon travel conditions. Before I go, however, I wanted to point my readers back to Brandt Revocable Trust v. US. The transcripts for the oral arguments are now up on The Oyez Project here. The Oyez Project is a wonderful resource for anyone interested in U.S. Supreme Court cases. It contains summaries and transcripts.  If the case is old, of course, there’s no audio; but, for most important contemporary cases you can almost always count on an audio file. If you click the link to the audio, a player will come up and at the bottom of the pop-up is a link to a PDF of the full text. I highly recommend anyone interested in private property rights — or the nature of easements and rights of way — to take a look or a listen.

Those of you who are not familiar with Supreme Court oral arguments may not realize that the justices interrupt the attorneys with questions from the start. Sometimes it’s annoying…Other times it’s funny…Mostly, it’s just interesting. It can make it hard to follow what is happening, so you may want to read along in the PDF transcript while listening. (In fact, the player will scroll a transcript simultaneously with the audio, but I find it helpful to have the PDF open so that I can move back and forth more easily to look at things as I listen.) Oral arguments are an hour in length, with the time divided between the two parties. This recording is just under 62 minutes long including the reading of the case name and closing by the Chief Justice. They work through a lot of technical terminology, but if you just stick with it you’ll get the gist. You’ll also hear that sometimes the justices want lawyers to clarify what a term means, or what the lawyers think it means. Most of the terms can be found on-line if you do an on-line search — some of the best explanations will either show up on legal blogs or in legal dictionaries. Brandt’s attorney makes his argument first as the lawyer for the Petitioner, and has 30 minutes to answer questions and clarify points from his brief. Then comes the Government attorney as the Respondent, who also has 30 minutes.

Spoiler Alert: Neither side had it easy with the justices, but the Government’s attorney, Anthony Yang, really did seem to be facing an especially skeptical Court. For example, Justice Breyer asked the Government lawyer for statutory or case-law authority for the Government’s position concerning the nature of the rights-of-way/easements. Justice Breyer came back to this point several times… As a rule of thumb, if justices are asking for authorities over and over (either statutory or case-law) to support a position, there’s more than a little reason for a lawyer to be concerned about how persuasive his/her brief was. Here’s one of my favorite moments in the exchange between Justice Breyer and Mr. Yang:

Justice Stephen G. Breyer: –Can you imagine or explain to me why a property lawyer worth his salt since 70 years ago or more, 1942, wouldn’t have read that case and advised his client, who was buying the land, if the railroad abandons it, it’s yours.

Anthony A. Yang: –Yes.

There are–

Justice Stephen G. Breyer: Where is some evidence of that?

Anthony A. Yang: –There are at least four reasons.

Justice Stephen G. Breyer: No, not reasons. I want to know if there’s any authority, and then you can give me the reasons.

Justice Breyer did say he’d have his law clerks go and look for the cases since the Government’s lawyer assured him they do exist. Yang said the Government just hadn’t included them in their brief… I guess we’ll find out what Breyer’s law clerks turn up.

I’m taking the transcripts and audio with me on the plane tomorrow so that I can do some more analysis… In the meantime…  Have fun listening!

Let’s Talk Easements: October Term and the US Supreme Court

This week began with the First Monday in October. For nearly anyone interested in law, this is an important event: it’s the start of the Supreme Court’s October term. We wait to read through the docket, and then we have what seem to be endless discussions about what we think is most interesting. This year’s cases include another look at affirmative action and a bunch of cases involving various workplace issues, some of which are utterly fascinating.

My interest in the Court’s docket tends to be fairly specific, and rarely does it have a lot to do with all the other discussions about other hot button issues. This October, buried in the pile of work accepted for review by the Nine, is a case that should be of interest to anyone watching the politics of property rights. The case, Brandt v. US may have significant consequences for the National Trails System Improvement Act (Pub. L. No. 100-470, 102 Stat. 2281 (1988)), which converts abandoned railroads to multi-use public spaces. It is a hugely popular program, and has been lauded throughout the country. Indeed, I for one have long loved the walking and hiking trails that come out of this legislation. However, property issues have been stewing for a while now, and Brandt provides us with an opportunity to see why this popular program has been disputed in the courts.

Brandt involves rights of way granted by the federal government in the 19th century to railroad companies on land that was later granted by patent to private owners. That’s very complicated sounding, so I’ll unpack it a bit. Before I can do that, though, I need to explain why I think easement disputes are so important.

Easement disputes that rise to the level of the Supreme Court almost always provide insight into policy problems in a historical perspective. For this reason, anytime easements held by the federal government over land that is privately owned are discussed, my ears perk up. For one thing, how Congress and the Courts interpret easement language in statutes, as well as in the easements themselves, has important consequences for property owners. For example, flowage easements, which provide the right to use land during a flood to divert the water into an area owned privately, have been obtained by the government in spillway and wetland areas in order to control flooding. The government argues that such easements are necessary for the protection of private property. This protection comes in the form of decreasing flooding heights in other areas. The specific language of the easements and the servitude placed on the land can both be sources of contention during flood control operations. Thus, they sit at the intersection of disaster management and property law. Easements in other contexts are instructive because they can shed light on how time, moving along as it does, and changes in the land and the people living on it or near it, combine with economic issues to give shape to disputes concerning various forms of land use. Easements exist at that intersection of disaster management and property because easements also sit at the intersection of community relations, social structures and norms. Put pressure on easement arrangements, and you will learn a lot very quickly about a community.

Boiled down to their most basic conceptual level, an easement is a contract between a private property owner and another party that grants the right of limited use of land owned to the second party. Title of the land does not transfer. The original owner continues to hold title, and the user gets to use the land for the purpose set out in the easement. A lot us of know what an easement is because we have them around our homes. For example, do you have an alleyway behind your house? Or a shared driveway? If you own the title of the property that is being used by a neighbor or the public (i.e., think a sidewalk), chances are there’s an easement that allows that use. When you do a title search on a piece of property, any easement that exists should show up (caveat: an implied easement might not — these exist where a tradition of use has developed. They can become a point of hot contest if an owner no longer wants to allow the use that’s been there for some time). Sometimes there’s money exchanged for the easement, but not always. I have friends who have an easement for a shared driveway with their neighbor — they did the paperwork and shook hands. There is some financial element to their agreement, but it seems mostly to revolve around who pays to have the snow cleared in the winter. But the easement does structure their relationship to some extent by stating who has the right to do what, and what compensation is required for that right. And it is a driveway, so this is a right to use that matters on a nearly daily basis.

Most easements run with the land (known as “perpetual easements”). This means they obligate future owners to allow the use designated in the easement, as well as the owner who negotiated the initial easement. And if the use of the land changes, the users have to renegotiate with the owner. Again, at its most basic, oversimplified level, this is what an easement is. There are complexities, of course (there always are in law). But the point is this: easements transfer a limited right to use from an owner to a non-owner, but they do not transfer title.

There’s another legal instrument, known as a limited fee title, which is also used at times to acquire land for public purposes. Here, ownership actually does transfer to the user of the land, but there are specific conditions to the transfer. The holder of the limited fee can determine how the land is to be used within the limitations set out in the fee. Now, my understanding here is that a limited fee on public land means that the holder can do whatever he/she wants with the land provided the conditions of the fee are met, both in terms of the limitations placed on the use and the specific conditions under which the transfer occurred. If those conditions or specific circumstances cease to exist, the ownership of the land reverts back to the original owner. If the original owner is the government (because they are the “owners” of public land), then it would revert to them. For example, if a corporation is granted a limited fee title to operate its railroad, as long as that is what they are doing, they can do many things with the land: build depots, new tracks, upgrade old tracks, dig for wiring, etc. As long as it supports the operation of their railroad, they own the land and can do what they need to do to run their railroad. But, if the railroad ceases to exist, the conditions under which the limited fee title was granted also cease to exist, and the ownership of the land reverts back to the original holder of title. If it’s public land, that would be the government. If it’s private land, the “reversionary interest”, as it is called, goes back to the private owner.

In Brandt, the right to use public land for railroad tracks was granted to the railroads in 1875 in the General Railroad Right-of-Way Act. At the time, the land was not privately owned. What complicates the issue, however, is that several decades later, in 1908,  the federal government granted the land surrounding the tracks to the parents of Marvin Brandt, the plaintiff in the case, through a land patent. Land patents transfer the title of land from a sovereign entity (i.e., the federal government in this case) to a private owner. Thus, the land became privately owned. According to the petition for cert, the patent expressly reserved certain rights of ways and road easements in it. What the plaintiffs dispute, however, is whether it reserved an “implied reversionary interest” for the government in the land where the railroad tracks were. The answer to their question will turn on whether or not the 1875 statute granted an easement or a limited fee title.

Brandt’s lawyers argue that the right-of-way granted in 1875 provided an easement for the building of the railroad tracks, not a limited fee. When the land was patented to the Brandt family, they came into ownership of all the land, but the railroads retained their usage rights in the easement. Later, when the tracks were abandoned, the limited use ceased to exist. There was no need to change ownership because the land reverted back to the Brandts, as owners of the land through the patent.

The federal government disagrees, and has argued in lower courts that the reversionary interest in the land is their’s since it was public land in the first place. The patent, they contend, did not transfer title to the Brandts in the area where the limited fee existed. In short, they believe they still own the land where the railroad tracks had been, even though the railroads long go abandoned them. The government has, therefore, sought to quiet title in the land (for the Brandts as well as other property owners in the area) so that they can use the railroad tracks for conversion to recreational trails.

The question in the case, then, is whether the 1875 legislation granted an implied reversionary interest in the land for the federal government.  And the answer turns on whether it was an easement (in which case, the reversionary interest is the Brandts’) or a limited fee (in which case, the government claims they have the title to the land).

For supporters of the rail conversion programs, this case is frightening. If the Court finds for Brandt, areas that were part of the right of way granted by the 1875 act will have to be purchased, or an easement will have to be obtained, or there will be no public recreational trail through that land. An alternative will have to be found. This can become a very costly proposition, making rail conversions much more difficult in many places. Keep in mind, however, that not all the railroad tracks that are abandoned were part of the rights of way granted in the 1875 act under scrutiny in this case. Therefore, every abandoned track in the country will not be subject to the ruling. Some were on land owned and run by the railroads themselves; other lands were granted through other types of land transactions to the railroads; and still other land was held by state governments or other private entities. Anyone who thinks there’s a track that could be converted has to do their homework already, and more work may be the cost of a decision against the government in this case. Fortunately, there are great organizations that can help figure some of this out, such as the Rails To Trails Conservancy.

My researcher self sees the case as a great example of how historical developments complicate private property. Large, national programs continue, in these disputes, to impact private owners well over a hundred years later. Property disputes are not unique in presenting their history through a multitude of public sources. We document land so carefully, however, that property disputes provide incredibly helpful insight in understanding the development of public policy and disputing behavior because there are long-term and rich records. If one contextualizes them and reads them with a mind to broader political, economic and social forces, the past is alive again and we can gain some leverage on why policies that are popular, like the rail conversion program, can become so hotly disputed. As much as I love the trails I’ve been on that were created through this program, I can see why private owners may not want the members of the public walking, biking, or hiking through their land, particularly if they have little say as to which of those activities will be allowed, what will happen if the public litters or damages the land, or if they simply have another use in mind for it. Ownership needs to be clarified, and then we need to decide how to proceed.

As in many property rights claims, there are competing norms at work. Here, the rights of ownership (which are tied directly to economic development) versus the ability to use recreational spaces (which are also tied directly to economic development) are vying for our attention. We will see what the Supreme Court does.  In the meantime, when I have updates on the status of the case, I’ll post them.

SCOTUSblog, a great resource for finding Supreme Court analysis, has posted documents related to the case here.

The lawyers for Brandt, Mountain States Legal Foundation, have posted materials relating to the case, including their press release.