This came across the Chicago Transit Yahoo blog

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Effect of March Supreme Court ruling on Illinois Prairie Path uncert
Posted by: "David Sadowski" i
Date: Thu Apr 3, 2014 1:31 pm ((PDT))

http://www.mysuburbanlife.com/2014/04/0 ... n/an2vp6t/

By NATHAN LURZ - nlurz@shawmedia.com

The legal status of one of the area's most prized natural treasures - the
Illinois Prairie Path - is in question after a recent U.S. Supreme Court
decision.

On March 10, the court ruled in the case of Marvin M. Brandt Revocable
Trust et al. versus the United States. By an 8-to-1 vote, it determined
that land given to now-defunct railroads under government easements must be
returned to the original property owners.

The outcome could have a significant affect on the nearly 22,000 miles of
rail-to-trail paths across the country, including the Prairie Path,
according to the nonprofit Rails-To-Trails Conservancy.

The path, which turned 50 in September 2013, stretches about 62 miles
across DuPage, Cook and Will counties and was among the pioneer projects in
the conversion of railroad lines into community trails.

"In general, I'm disappointed that the trails-to-rails efforts may be
blindsided by a Supreme Court ruling," said Ilinois Prairie Path nonprofit
President Erik Spande. "We are all well aware of the impact it can have on
our environment and on people for their health and wellness. This is a
setback."

Spande said most of the trail is under the jurisdiction of DuPage County,
so he isn't sure what outcome the ruling will have for the Prairie Path.

County board member and DuPage County Transportation Committee Chair Don
Puchalski said in a statement that the county had asked the State's
Attorney's Office to review the implications of the case.

"We recognize bicycle trails and open space are very important to our
residents and want to protect their ability to enjoy them," he said in the
statement.

Rails-To-Trails Conservancy Senior Vice President of Policy and Programs
Kevin Mills said while he isn't sure about the specifics of the Prairie
Path, most trails nationwide will likely remain unchanged.

Existing trails are unaffected if any of the following conditions are met:
the trail is "railbanked," or sold to a trail agency until a railroad might
need the corridor again; the corridor was acquired by federal right-of-way
before 1875; the railroad originally acquired the corridor from a private
land owner; the trail manager owns the land adjacent to the corridor or the
full title to the corridor; or the corridor falls within the 13 original
colonies.

"It's the oldest rail-to-trail in the country, and is a wonderful,
well-established and well-loved trail," Mills said of the path. "Even if
there were issues, it's the kind of situation where people will say, 'How
do we deal with compensating,' as opposed to expecting it to be broken up."

Mills said because many value the trails as a resource and public asset,
some cases could be solved via eminent domain, although more still may turn
up.

"We hope it will be a very narrow decision", Spande said. "So it won't have
wide-reaching impacts and that better angels will prevail so we don't
damage a lot of the assets that a lot of people have come to treasure."

No comments?

Couldn't happen to a better bunch of bastards, if you ask me. But in reality, it will just be an excuse to spend more tax dollars; every place an adjacent landowner presents a case with merit to get his property back, whatever gov't entity that maintains the path will just condemn it and pay the guy off.

What stands out about all of this, at least for me, is that reversionary clauses in easements have been part of easement agreements since forever. Sure, maybe this particular decision only applies to easements from the Federal government--but what about all the other easements with reversionary clauses in them? Those are not without precedent, not without some backing in law.

We've potentially opened a whole can of worms here.

Sadly, it also means these corridors, which these bike trails were meant to preserve for future rail revival should that come about, could be lost.

What we have here is a poorly written article by people raising vague concerns that may or may not have a foundation, so they have asked the Illinois Attorney General look into it. The article comes to no conclusions. No property owners have challenged the existence of the Illinois Prarie Path, nobody has filed suit to reclaim the land. This is pure uninformed journalistic alarmism.

Even the Rails to Trails convervancy seem to think that it does not apply.

The CA&E is not a land grant railroad. I'm sure most of the right of way was purchased. There is one seciton where the right of way was gained by easement, and the trail makes a detour on property purchased for that reason.

Once again, as I've said before. There is a common misconception that once a railroad is abandoned, the right of way reverts to the adjacent property owners. This is not always true, as it depends on how the right of way was originally established.

Legal issues with easements, reversionary rights, etc are ancient, going back to England. As such, the recent Supreme Court ruling probably only applies to a very specific example, federal land grant railroads built after 1875.

Anybody know what that bit in the article about it not applying to the 13 colonies is?

It's explained on the Rails to Trails Conservancy site. Someone sent me the link:

http://www.upa.pdx.edu/IMS/currentprojects/TAHv3/Content/PDFs/Land_Grants_Federal_Public_Domain.pdf

Happening in about an hour.


Professors’ Corner

A FREE monthly webinar (non-CLE) featuring a panel of law professors addressing topics of interest to practitioners of real estate and trusts/estates

April’s program: “Rails-to-Trails and the Impact of Brandt Revocable Trust v. United States”

Wednesday, April 9, 12:30pm Eastern/11:30am Central/9:30am Pacific

Speakers:
Professor Danaya C. Wright, University of Florida Levin College of Law
Professor Michael Allan Wolf, University of Florida Levin College of Law

On March 10, 2014, the U.S. Supreme Court decided Brandt Revocable Trust v. U.S., involving the interpretation of the General Railroad Right-of-Way Act of 1875. The case involved a railroad right of way obtained in 1908, crossing land conveyed by the U.S. to the Brandt family in a 1976 land patent that did not specify what would happen if the railroad later relinquished its right of way (which occurred some years later). In the case, the U.S. sought to quiet title to the abandoned right of way, including the portion that crossed the land conveyed by the Brandt patent. Reversing the Tenth Circuit, which had affirmed a grant of summary judgment for the U.S., the Supreme Court held that the right of way was only an easement and was extinguished when the railroad abandoned it. The decision has already created some substantial consternation regarding its potential impact on the Rails-to-Trails movement and recreational trail development along abandoned rail corridors.

Our program for April will feature two leading scholars who will discuss the Brandt decision and its likely implications for the "Rails to Trails" movement, existing recreational trails and future recreational trail development. Our speakers will include Professors Danaya C. Wright and Michael Allan Wolf, both on the faculty of the University of Florida Levin College of Law. Professor Wright is the Clarence J. TeSelle Endowed Professor, and the nation's pre-eminent legal scholar on the subject of Rails-to-Trails. Professor Wolf is the Richard E. Nelson Chair in Local Government Law at Florida and a frequent speaker on the subjects of Land Use Controls, Local Government, and Environmental Law.

Register for this FREE program at http://ambar.org/ProfessorsCorner

Members of the DIRT list are encouraged to participate in this program, and to become involved members of the ABA Real Property, Trust and Estate Law Section.



Sponsored by the ABA Real Property, Trust and Estate Law Section’s Legal Education and Uniform Laws Group



R. Wilson Freyermuth

John D. Lawson Professor

Curators’ Teaching Professor

University of Missouri School of Law

215 Hulston Hall

Columbia, MO 65201

(573) 882-1105

freyermuthr@missouri.edu

I tried to register and it says the webinar is full. Maybe they will post it to archives.

And they are wrong ... Pennsylvania is one the original Thirteen, and is at the forefront of ROW recovery for rail usage.

I didn't quite get the connection, either... All I got from it is none of the Federal Land Ordinances applied to the original thirteen colonies. I suppose, if the Supreme Court decision narrowly applies to Federal land-grant railroads, then it is a true statement; the Federal Gov't couldn't give land grants in the original colonies, as they had no land to give.

That's the key to why the ruling does not apply to the original colonies. The land in the colonies was given to the colonies by royal charter, and those charters were not abolished when the USA was established.

This case isn't about land grant railroads. In those cases, the railroads (and successor purchasers) own the alternate sections free and clear (except for the O&C Lands which reverted to the United States and are now managed by BLM).

This "Grant" is part of a land exchange between a private owner and the Forest Service. The land the USFS gave them was encumbered by an existing railroad, so the new owner had to accept an easement for the railroad. The Supreme Court said that once the railroad was abandoned for five years the easement was extinguished and the new owner has clear title.

http://www.npr.org/blogs/thetwo-way/2014/03/10/288584936/family-trust-wins-supreme-court-fight-against-bike-trail

Yup, this can be said for sure: If you own it in fee simple, you still own it. If you don't own it in fee simple, you're a damned fool.

I think that all railroads should talk to anyone who holds their easement or reversionary interest in the property, and buy them out of it. The value of the property is proportional to the likelihood of abandonment in the foreseeable future. Talk to the owners while the railroad is going gangbusters and abandonment is not foreseeable, that value will be pretty low. Think it through, if you have a strip of land with the BNSF mainline on it, and I want to buy that strip of land from you, what's its value? Not much, since I'll never get to use it in my lifetime.

In fact, I wonder if you could simply take via eminent domain the land you are already using, using that rationale to hold the purchase price low.

Congress should have made the law say that trail use **IS** rail use, and thus, conversion to trail does not constitute abandonment and cannot trigger reversion. Maybe they did and the Supremes said "bull".

They certainly should say that valuation in eminent domain applies only to the value to the landowner, say 3 of 100 acres of a farm are a railroad RoW. For eminent domain purpose that should be valuated at 3 acres of farmland, the farmer can't claim "right-of-way" value since he doesn't own enough of it to be a meaningful right-of-way on its own.

Yes, some railroad education text books recommend purchase of the land under an easement if later possible - like when it's desirable to buy more land from the original seller.Often, the railroad already tried that long ago, and all they got was this stupid easement with a reversion clause.Congress did, but the law didn't apply to some earlier transactions before the law was passed, like this transaction.
In this case, the Federal Government transferred the land under the easement and tried to claim that they (the Feds) had kept the reversion rights, even though that wasn't in writing. The Supreme Court disagreed, but did agree that there aren't many cases just like this that the decision can affect.

I'm not a lawyer, but I think such an attempt would be dismissed as "non-justiciable."

A court would probably say that the railroad already has an enforceable easement which allows them to run a railroad, therefore there is no injury to the railroad requiring court action.

An attempt to use the court to acquire land at an artificially low price would arguably constitute unjust enrichment.

The Supreme Court's decision is interesting reading.

http://www.supremecourt.gov/opinions/13pdf/12-1173_nlio.pdf

Sounds to me like the Law of Resiprosity ("reaping what is sown", "what goes around comes around", etc., etc.) is working in full force... FINALLY!!!