Congress has enacted several laws relating to railroads, dealing with issues from the creation of the intercontinental system to the conversion of abandoned rail lines into trails. The recent Supreme Court case Marvin M. Brandt Revocable Trust v. United States presents the question of what happens to a railroad company’s right of way granted under one of these laws, the General Railroad Right-of-Way Act of 1875. The issue presented was: when the railroad company abandons its line: does it go to the United States or to the private party who bought the land underlying the right of way?

In Brandt, the Court traced the history of the railroad system and the U.S. government’s role in its creation. The Court explained that pre-1871 federal statutes afforded the government a reversionary interest in railroad rights of way, meaning that abandoned railroads became property of the United States.   But the Court found that railroad rights of way granted by the U.S. government pursuant to the 1875 Act are mere easements, without a reversionary interest in the United States.

Common law dictates that, when an easement holder abandons an easement, the land under the easement reverts to the fee owner of the land, free and clear. In Brandt, this meant that the Brandt trust, not the United States, was the owner of the abandoned railroad right of way.   With the Brandt holding now the law of the land, it is even more important to make sure that title due diligence is complete and comprehensive when dealing with properties including railroad rights of way.