The United States Supreme Court issued its decision in Brandt v. United States.
Congress passed the General Railroad Right-of-Way Act of 1875 to provide
railroad companies "right[s] of way through the public lands of the United
States," 43 U. S. C. § 934. One such right of way, obtained by a railroad in
1908, crosses land that the United States conveyed to the Brandt family in a
1976 land patent. That patent stated, as relevant here, that the land was
granted subject to the railroad's rights in the 1875 Act right of way, but
it did not specify what would occur if the railroad later relinquished those
rights. Years later, a successor railroad abandoned the right of way with
federal approval. The Government then sought a judicial declaration of
abandonment and an order quieting title in the United States to the
abandoned right of way, including the stretch that crossed the land conveyed
in the Brandt patent. Petitioners contested the claim, asserting that the
right of way was a mere easement that was extinguished when the railroad
abandoned it, so that Brandt now enjoys full title to his land without the
burden of the easement. The Government countered that the 1875 Act granted
the railroad something more than a mere easement, and that the United States
retained a reversionary interest in that land once the railroad abandoned
it. The District Court granted summary judgment to the Government and
quieted title in the United States to the right of way. The Tenth Circuit
affirmed.
(a) The Government loses this case in large part because it won when it
argued the opposite in Great Northern R. Co. v. United States,
315 U. S. 262. There, the Government contended that the
1875 Act (unlike pre-1871 statutes granting rights of way) granted nothing
more than an easement, and that the railroad in that case therefore had no
interest in the resources beneath the surface of its right of way. This
Court adopted the Government's position in full. It found the 1875 Act's
text "wholly inconsistent" with the grant of a fee interest, id., at 271;
agreed with the Government that cases describing the nature of rights of way
granted prior to 1871 were "not controlling" because of a major shift in
congressional policy concerning land grants to railroads after that year,
id., at 278; and held that the 1875 Act "clearly grants only an easement,"
id., at 271. Under well-established common law property principles, an
easement disappears when abandoned by its beneficiary, leaving the owner of
the underlying land to resume a full and unencumbered interest in the land.
See Smith v. Townsend, 148 U. S. 490, 499. Pp. 8-12.
496 Fed. Appx. 822, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
KENNEDY, THOMAS, GINSBURG, BREYER, ALITO, and KAGAN, JJ., joined. SOTOMAYOR,
J., filed a dissenting opinion.
In the mid-19th century, Congress began granting private railroad
companies rights of way over public lands to encourage the settlement and
development of the West. Many of those same public lands were later conveyed
by the Government to homesteaders and other settlers, with the lands
continuing to be subject to the railroads' rights of way. The settlers and
their successors remained, but many of the railroads did not. This case
presents the question of what happens to a railroad's right of way granted
under a particular statute — the General Railroad Right-of-Way Act of 1875 —
when the railroad abandons it: does it go to the Government, or to the
private party who acquired the land underlying the right of way?
In the early to mid-19th century, America looked west. The period from the
Louisiana Purchase in 1803 to the Gadsden Purchase in 1853 saw the
acquisition of the western lands that filled out what is now the contiguous
United States.
The young country had numerous reasons to encourage settlement and
development of this vast new expanse. What it needed was a fast and reliable
way to transport people and property to those frontier lands. New technology
provided the answer: the railroad. The Civil War spurred the effort to
develop a transcontinental railroad, as the Federal Government saw the need
to protect its citizens and secure its possessions in the West. Leo Sheep
Co. v. United States, 440 U. S. 668, 674-676 (1979). The construction of
such a railroad would "furnish a cheap and expeditious mode for the
transportation of troops and supplies," help develop "the agricultural and
mineral resources of this territory," and foster [*3] settlement. United States
v. Union Pacific R. Co., 91 U. S. 72, 80 (1875).
The substantial benefits a transcontinental railroad could bring were
clear, but building it was no simple matter. The risks were great and the
costs were staggering. Popular sentiment grew for the Government to play a
role in supporting the massive project. Indeed, in 1860, President Lincoln's
winning platform proclaimed: "That a railroad to the Pacific Ocean is
imperatively demanded by the interests of the whole country; that the
Federal Government ought to render immediate and efficient aid in its
construction." J. Ely, Railroads and American Law 51 (2001). But how to do
it? Sufficient funds were not at hand (especially with a Civil War to
fight), and there were serious reservations about the legal authority for
direct financing. "The policy of the country, to say nothing of the supposed
want of constitutional power, stood in the way of the United States taking
the work into its own hands." Union Pacific R. Co., supra, at 81.
What the country did have, however, was land — lots of it. It could give
away vast swaths of public land — which at the time possessed little value
without reliable transportation — in hopes that such grants would increase
the appeal
of a transcontinental railroad to private investors. Ely, supra, at 52-53.
In the early 1860s, Congress began granting to railroad companies rights of
way through the public domain, accompanied by outright grants of land along
those rights of way. P. Gates, History of Public Land Law Development
362-368 (1968). The land was conveyed in checkerboard blocks. For example,
under the Union Pacific Act of 1862, odd-numbered lots of one square mile
apiece were granted to the railroad, while even-numbered lots were retained
by the United States. Leo Sheep Co., supra, at 672-673, 686, n. 23.
Railroads could then either develop their lots or sell them, to finance
construction of rail lines and encourage the settlement of future customers.
Indeed, railroads became the largest secondary dispenser of public lands,
after the States. Gates, supra, at 379.
But public resentment against such generous land grants to railroads began
to grow in the late 1860s. Western settlers, initially some of the
staunchest supporters of governmental railroad subsidization, complained
that the railroads moved too slowly in placing their lands on the market and
into the hands of farmers and settlers. Citizens and Members of Congress
argued that the grants conflicted with the goal of the Homestead Act of 1862
to encourage individual citizens to settle and develop the frontier lands.
By the 1870s, legislators across the political spectrum had embraced a
policy of reserving public lands for settlers rather than granting them to
railroads. Id., at 380, 454-456.
A House resolution adopted in 1872 summed up the change in national
policy, stating:
"That in the judgment of this House the policy of granting
subsidies in public lands to railroads and other corporations ought
to be discontinued, and that every consideration of public policy
and equal justice
to the whole people [*4] requires that the public lands should be held
for the purpose of securing homesteads to actual settlers, and for
educational purposes, as may be provided by law." Cong. Globe, 42d
Cong., 2d Sess., 1585.
Congress enacted the last checkerboard land-grant statute for railroads in
1871. Gates,
supra, at 380. Still wishing to encourage railroad
construction, however, Congress passed at least 15 special acts between 1871
and 1875 granting to designated railroads "the right of way" through public
lands, without any accompanying land subsidy.
Great Northern R. Co. v.
United States, 315 U. S. 262,
274, and n. 9 (1942).
Rather than continue to enact special legislation for each such right of
way, Congress passed the General Railroad Right-of-Way Act of 1875,
18 Stat. 482, 43 U. S. C. §§ 934-939. The 1875 Act provided that "[t]he
right of way through the public lands of the United States is granted to any
railroad company" meeting certain requirements, "to the extent of one
hundred feet on each side of the central line of said road." § 934. A
railroad company could obtain a right of way by the "actual construction of
its road" or "in advance of construction by filing a map as provided in
section four" of the Act. Jamestown & Northern R. Co. v. Jones,
177 U. S. 125, 130-131 (1900). Section 4 in turn provided that a company
could "secure" its right of way by filing a proposed map of its rail
corridor with a local Department of the Interior office within 12 months
after survey or location of the road. § 937. Upon approval by the Interior
Department, the right of way would be noted on the land plats held at the
local office, and from that day forward "all such lands over which such
right of way shall pass shall be disposed of subject to the right of way."
Ibid.
The 1875 Act remained in effect until 1976, when its
provisions governing the issuance of new rights of way were repealed by the
Federal Land Policy and Management Act, § 706(a), 90 Stat. 2793. This case
requires us to define the nature of the interest granted by the 1875 Act, in
order to determine what happens when a railroad abandons its right of way.
Melvin M. Brandt began working at a sawmill in Fox Park, Wyoming, in 1939.
He later purchased the sawmill and, in 1946, moved his family to Fox Park.
Melvin's son Marvin started working at the sawmill in 1958 and came to own
and operate it in 1976 until it closed, 15 years later.
In 1976, the United States patented an 83-acre parcel of land in Fox Park,
surrounded by the Medicine Bow-Routt National Forest, to Melvin and Lulu
Brandt. (A land patent is an official document reflecting a grant by a
sovereign that is made public, or "patent.") The patent conveyed to the
Brandts fee simple title to the land "with all the rights, privileges,
immunities, and appurtenances, of whatsoever nature, thereunto belonging,
unto said claimants, their successors and assigns, forever." App. to Pet.
for Cert. 76. But the patent did include limited exceptions and
reservations. For example, the patent "except[s] and reserv[es] to the
United States from the land granted a right-of-way thereon for ditches or
canals constructed by the authority of the United States"; "reserv[es] to
the United States . . . a right-of-way for the existing [*5] Platte Access Road
No. 512"; and "reserv[es] to the United States . . . a right-of-way for the
existing Dry Park Road No. 517." Id., at 76-77 (capitalization omitted). But
if those roads cease to be used by the United States or its assigns for a
period of five years, the patent provides that "the easement traversed
thereby shall terminate." Id., at 78.
Most relevant to this case, the patent concludes by
stating that the land was granted "subject to those rights for railroad
purposes as have been granted to the Laramie[,] Hahn's Peak & Pacific
Railway Company, its successors or assigns." Ibid. (capitalization omitted).
The patent did not specify what would occur if the railroad abandoned this
right of way.
The right of way referred to in the patent was obtained by the Laramie,
Hahn's Peak and Pacific Railroad (LHP&P) in 1908, pursuant to the 1875
Act.[fn1] The right of way is 66 miles long and 200 feet wide, and it
meanders south from Laramie, Wyoming, through the Medicine Bow-Routt
National Forest, to the Wyoming-Colorado border. Nearly a half-mile stretch
of the right of way crosses Brandt's land in Fox Park, covering ten acres of
that parcel.
In 1911, the LHP&P completed construction of its railway over the right of
way, from Laramie to Coalmont, Colorado. Its proprietors had rosy
expectations, proclaiming that it would become "one of the most important
railroad systems in this country." Laramie, Hahns Peak and Pacific Railway
System: The Direct Gateway to Southern Wyoming, Northern Colorado, and
Eastern Utah 24 (1910). But the railroad ultimately fell short of that goal.
Rather than shipping coal and other valuable ores as originally hoped, the
LHP&P was used primarily to transport timber and cattle. R. King, Trails to
Rails: A History of Wyoming's Railroads 90 (2003). Largely because of high
operating costs during Wyoming winters, the LHP&P never quite achieved
financial stability. It changed hands numerous times from 1914 until 1935,
when it was acquired by the Union Pacific Railroad at the
urging of the Interstate Commerce Commission. Ibid.; S. Thybony, R.
Rosenberg, & E. Rosenberg, The Medicine Bows: Wyoming's Mountain Country
136-138 (1985); F. Hollenback, The Laramie Plains Line 47-49 (1960).
In 1987, the Union Pacific sold the rail line, including the right of way,
to the Wyoming and Colorado Railroad, which planned to use it as a tourist
attraction. King, supra, at 90. That did not prove profitable either, and in
1996 the Wyoming and Colorado notified the Surface Transportation Board of
its intent to abandon the right of way. The railroad tore up the tracks and
ties and, after receiving Board approval, completed abandonment in 2004. In
2006 the United States initiated this action seeking a judicial declaration
of abandonment and an order quieting title in the United States to the
abandoned right of way. In addition to the railroad, the Government named as
defendants the owners of 31 parcels of land crossed by the abandoned right
of way.
The Government settled with or obtained a default judgment against all but
one of those landowners — Marvin Brandt. He contested the Government's claim
and [*6] filed a counterclaim on behalf of a family trust that now owns the Fox
Park parcel, and himself as trustee.[fn2] Brandt asserted that the stretch
of the right of way crossing his family's land was a mere easement that was
extinguished upon abandonment by the railroad, so that, under common law
property rules, he enjoyed full title to the land without the burden of the
easement. The Government countered that it had all along retained a
reversionary interest in the railroad right of way — that is, a future
estate that would be restored to the United States if the railroad abandoned
or forfeited its interest.
The District Court granted summary judgment to the Government and quieted
title in the United States to the right of way over Brandt's land.
2008 WL 7185272 (D Wyo., Apr. 8, 2008).[fn3] The Court of Appeals affirmed.
United States v. Brandt, 496 Fed. Appx. 822 (CA10 2012) (per curiam). The
court acknowledged division among lower courts regarding the nature of the
Government's interest (if any) in abandoned 1875 Act rights of way. But it
concluded based on Circuit precedent that the United States had retained an
"implied reversionary interest" in the right of way, which then vested in
the United States when the right of way was relinquished. Id., at 824.
We granted certiorari. 570 U S. ___ (2013).
This dispute turns on the nature of the interest the United States
conveyed to the LHP&P in 1908 pursuant to the 1875 Act. Brandt contends that
the right of way granted under the 1875 Act was an easement, so that when
the railroad abandoned it, the underlying land (Brandt's Fox Park parcel)
simply became unburdened of the easement. The Government does not dispute
that easements normally work this way, but maintains that the 1875 Act
granted the railroads something more than an easement, reserving an implied
reversionary interest in that something more to the United States. The
Government loses that argument today, in large part because it won when it
argued the opposite before this Court more than 70 years ago, in the case of
Great Northern Railway Co. v. United States, 315 U. S. 262 (1942).
In 1907, Great Northern succeeded to an 1875 Act right
of way that ran through public lands in Glacier County, Montana. Oil was
later discovered in the area, and Great Northern wanted to drill beneath its
right of way. But the Government sued to enjoin the railroad from doing so,
claiming that the railroad had only an easement, so that the United States
retained all interests beneath the surface.
This Court had indeed previously held that the pre-1871 statutes, granting
rights of way accompanied by checkerboard land subsidies, conveyed to the
railroads "a limited fee, made on an implied condition of reverter." See,
e.g., Northern Pacific R. Co. v. Townsend, 190 U. S. 267, 271 (1903). Great
Northern relied on those cases to contend that it owned a "fee" interest in
the right of way, which included the right to drill for minerals beneath the
surface.
The Government disagreed. It argued that "the 1875 Act granted an easement
and nothing more," and that the railroad accordingly could claim no interest
in the resources beneath the surface. Brief for United States [*7] in Great
Northern R. Co. v. United States, O. T. 1941, No. 149, p. 29. "The year 1871
marks the end of one era and the beginning of a new in American land-grant
history," the Government contended; thus, cases construing the pre-1871
statutes were inapplicable in construing the 1875 Act, id., at 15, 29-30.
Instead, the Government argued, the text, background, and subsequent
administrative and congressional construction of the 1875 Act all made clear
that, unlike rights of way granted under pre-1871 land-grant statutes, those
granted under the 1875 Act were mere easements.
The Court adopted the United States' position in full, holding that the
1875 Act "clearly grants only an easement, and not a fee." Great Northern,
315 U. S., at 271. The Court found Section 4 of the Act "especially
persuasive," because it provided that "all such lands over which
such right of way shall pass shall be disposed of subject to such right of
way." Ibid. Calling this language "wholly inconsistent" with the grant of a
fee interest, the Court endorsed the lower court's statement that "[a]pter
words to indicate the intent to convey an easement would be difficult to
find." Ibid.
That interpretation was confirmed, the Court explained, by the historical
background against which the 1875 Act was passed and by subsequent
administrative and congressional interpretation. The Court accepted the
Government's position that prior cases describing the nature of pre-1871
rights of way — including Townsend, supra, at 271 — were "not controlling,"
because of the shift in congressional policy after that year. Great
Northern, supra, at 277-278, and n. 18. The Court also specifically
disavowed the characterization of an 1875 Act right of way in Rio Grande
Western R. Co. v. Stringham, 239 U. S. 44 (1915), as "`a limited fee, made
on an implied condition of reverter.'" Great Northern, supra, at 278-279
(quoting Stringham, supra, at 47). The Court noted that in Stringham "it
does not appear that Congress' change of policy after 1871 was brought to
the Court's attention," given that "[n]o brief was filed by the defendant or
the United States" in that case. Great Northern, supra, at 279, and n. 20.
The dissent is wrong to conclude that Great Northern merely held that "the
right of way did not confer one particular attribute of fee title." Post, at
3 (opinion of SOTOMAYOR, J.). To the contrary, the Court specifically
rejected the notion that the right of way conferred even a "limited fee."
315 U. S., at 279; see also id., at 277-278 (declining to follow cases
describing a right of way as a "limited," "base," or "qualified" fee).
Instead, the Court concluded, it was "clear from the language of the Act,
its legislative history, its early administrative interpretation and the
construction placed upon it by Congress in subsequent
enactments" that the railroad had obtained "only an easement in its rights
of way acquired under the Act of 1875." Id., at 277; see United States v.
Union Pacific R. Co., 353 U. S. 112, 119 (1957) (noting the conclusion in
Great Northern that, in the period after 1871, "only an easement for
railroad purposes was granted"); 353 U. S., at 128 (Frankfurter, J.,
dissenting) (observing that the Court "conclude[d] in the Great Northern
case that a right of way [*8] granted by the 1875 Act was an easement and not a
limited fee").
When the United States patented the Fox Park parcel to Brandt's parents in
1976, it conveyed fee simple title to that land, "subject to those rights
for railroad purposes" that had been granted to the LHP&P. The United States
did not reserve to itself any interest in the right of way in that patent.
Under Great Northern, the railroad thus had an easement in its right of way
over land owned by the Brandts.
The essential features of easements — including, most important here, what
happens when they cease to be used — are well settled as a matter of
property law. An easement is a "nonpossessory right to enter and use land in
the possession of another and obligates the possessor not to interfere with
the uses authorized by the easement." Restatement (Third) of Property:
Servitudes
§ 1.2(1) (1998). "Unlike most possessory estates, easements . . .
may be unilaterally terminated by abandonment, leaving the servient owner
with a possessory estate unencumbered by the servitude."
Id.,
§ 1.2, Comment
d;
id.,
§ 7.4, Comments
a,
f. In other words, if the beneficiary of the
easement abandons it, the easement disappears, and the landowner resumes his
full and unencumbered interest in the land. See
Smith v. Townsend,
148 U. S. 490,
499 (1893) ("[W]hoever obtained title from the government to
any . . . land through which ran this right of way would acquire a fee to
the whole tract subject to the easement of
the company, and if ever the use of that right of way was abandoned by the
railroad company the easement would cease, and the full title to that right
of way would vest in the patentee of the land"); 16 Op. Atty. Gen. 250, 254
(1879) ("the purchasers or grantees of the United States took the fee of the
lands patented to them subject to the easement created by the act of 1824;
but on a discontinuance or abandonment of that right of way the entire and
exclusive property, and right of enjoyment thereto, vested in the
proprietors of the soil").[fn4]
Those basic common law principles resolve this case. When the Wyoming and
Colorado Railroad abandoned the right of way in 2004, the easement referred
to in the Brandt patent terminated. Brandt's land became unburdened of the
easement, conferring on him the same full rights over the right of way as he
enjoyed over the rest of the Fox Park parcel.
Contrary to that straightforward conclusion, the Government now tells us
that Great Northern did not really mean what it said. Emphasizing that Great
Northern involved only the question of who owned the oil and minerals
beneath a right of way, the Government asks the Court to limit its
characterization of 1875 Act rights of way as "easements" to that context.
Even if the right of way has some features of an easement — such as granting
only a surface interest to the railroad when the Government wants the
subsurface oil and minerals — the Government asks us to hold that the right
of way is not an easement for purposes of what happens when the railroad
stops using it. But nothing in the text of the 1875 Act supports such an
improbable (and self-serving) reading.
The Government argues that the [*9] similarity in the language of the 1875 Act
and the pre-1871 statutes shows that Congress intended to reserve a
reversionary interest in the lands granted under the 1875 Act, just as it
did in the pre-1871 statutes. See Brief for United States 17-18. But that is
directly contrary to the very premise of this Court's decision (and the
Government's argument) in Great Northern: that the 1875 Act granted a
fundamentally different interest in the rights of way than did the
predecessor statutes. 315 U. S., at 277-278; see U. S. Great Northern Brief
30 ("[Great Northern's] argument . . . fails because it disregards the
essential differences between the 1875 Act and its predecessors."). Contrary
to the Government's position now — but consistent with the Government's
position in 1942 — Great Northern stands for the proposition that the
pre-1871 statutes (and this Court's decisions construing them) have little
relevance to the question of what interest the 1875 Act conveyed to
railroads.
The Government next contends that this Court's decisions in Stalker v.
Oregon Short Line R. Co., 225 U. S. 142 (1912), and Great Northern R. Co. v.
Steinke, 261 U. S. 119 (1923), support its position that the United States
retains an implied reversionary interest in 1875 Act rights of way. Brief
for United States 28-32. According to the Government, both Stalker and
Steinke demonstrate that those
rights of way cannot be bare common law easements, because those cases
concluded that patents purporting to convey the land underlying a right of
way were "inoperative to pass title." Brief for United States 31 (quoting
Steinke, supra, at 131); see also Tr. of Oral Arg. 28-30, 33, 40-41, 44-45.
If the right of way were a mere easement, the argument goes, the patent
would have passed title to the underlying land subject to the railroad's
right of way, rather than failing to pass title altogether. But that is a
substantial overreading of those cases.
In both Stalker and Steinke, a railroad that had already obtained an 1875
Act right of way thereafter claimed adjacent land for station grounds under
the Act, as it was permitted to do because of its right of way. A
homesteader subsequently filed a claim to the same land, unaware of the
station grounds. The question in each case was whether the railroad could
build on the station grounds, notwithstanding a subsequent patent to the
homesteader. The homesteader claimed priority because the railroad's station
grounds map had not been recorded in the local land office at the time the
homesteader filed his claim. This Court construed the 1875 Act to give the
railroad priority because it had submitted its proposed map to the
Department of the Interior before the homesteader filed his claim. See
Stalker, supra, at 148-154; Steinke, supra, at 125-129.
The dispute in each case was framed in terms of competing claims to the
right to acquire and develop the same tract of land. The Court ruled for the
railroad, but did not purport to define the precise nature of the interest
granted under the 1875 Act. Indeed, it does not appear that the Court in
either case considered — much less rejected — an argument that the railroad
[*10] had obtained only an easement in the contested land, so that the patent
could still convey title to the homesteader. In any event, to the extent
that Stalker and Steinke could be read to imply that the railroads
had been granted something more than an easement, any such implication would
not have survived this Court's unequivocal statement in Great Northern that
the 1875 Act "clearly grants only an easement, and not a fee."
315 U. S., at 271.
Finally, the Government relies on a number of later enacted statutes that
it says demonstrate that Congress believed the United States had retained a
reversionary interest in the 1875 Act rights of way. Brief for United States
34-42. But each of those statutes purported only to dispose of interests the
United States already possessed, not to create or modify any such interests
in the first place. First, in 1906 and 1909, Congress declared forfeited any
right of way on which a railroad had not been constructed in the five years
after the location of the road. 43 U. S. C. § 940. The United States would
"resume[] the full title to the lands covered thereby free and discharged of
such easement," but the forfeited right of way would immediately "inure to
the benefit of any owner or owners of land conveyed by the United States
prior to such date." Ibid.
Then, in 1922, Congress provided that whenever a railroad forfeited or
officially abandoned its right of way, "all right, title, interest, and
estate of the United States in said lands" (other than land that had been
converted to a public highway) would immediately be transferred to either
the municipality in which it was located, or else to the person who owned
the underlying land. 43 U. S. C. § 912. Finally, as part of the National
Trails System Improvements Act of 1988, Congress changed course and sought
to retain title to abandoned or forfeited railroad rights of way, specifying
that "any and all right, title, interest, and estate of the United States"
in such rights of way "shall remain in the United States" upon abandonment
or forfeiture. 16 U. S. C. § 1248(c).
The Government argues that these statutes prove that
Congress intended to retain (or at least believed it had retained) a
reversionary interest in 1875 Act rights of way. Otherwise, the argument
goes, these later statutes providing for the disposition of the abandoned or
forfeited strips of land would have been meaningless. That is wrong. This
case turns on what kind of interest Congress granted to railroads in their
rights of way in 1875. Cf. Leo Sheep Co., 440 U. S., at 681 ("The pertinent
inquiry in this case is the intent of Congress when it granted land to the
Un ion Pacific in 1862."). Great Northern answered that question: an
easement. The statutes the Government cites do not purport to define (or
redefine) the nature of the interest conveyed under the 1875 Act. Nor do
they shed light on what kind of property interest Congress intended to
convey to railroads in 1875. See United States v. Price, 361 U. S. 304, 313
(1960) ("the views of a subsequent Congress form a hazardous basis for
inferring the intent of an earlier one").
In other words, these statutes do not tell us whether the United States
has an interest in any [*11] particular right of way; they simply tell us how any
interest the United States might have should be disposed of. For pre-1871
rights of way in which the United States retained an implied reversionary
interest, or for rights of way crossing public lands, these statutes might
make a difference in what happens to a forfeited or abandoned right of way.
But if there is no "right, title, interest, [or] estate of the United
States" in the right of way, 43 U. S. C. § 912, then the statutes simply do
not apply.
We cannot overlook the irony in the Government's argument based on
Sections 912 and 940. Those provisions plainly evince Congress's intent to
divest the United States of any title or interest it had retained to
railroad rights of way, and to vest that interest in individuals to whom the
underlying land had been patented — in other words, people just like the
Brandts. It was not until
1988 — 12 years after the United States patented the Fox Park parcel to the
Brandts — that Congress did an about-face and attempted to reserve the
rights of way to the United States. That policy shift cannot operate to
create an interest in land that the Government had already given away.[fn5]
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 in position, especially given "the
special need for certainty and predictability where land titles are
concerned." Leo Sheep Co., supra, at 687.
The judgment of the United States Court of Appeals for the Tenth Circuit
is reversed, and the case is remanded for further proceedings consistent
with this opinion.
[fn1] Locals at the time translated the acronym LHP&P as "Lord Help Push and
Pull" or "Late, Hard Pressed, and Panicky." S. Thybony, R. Rosenberg, & E.
Rosenberg, The Medicine Bows: Wyoming's Mountain Country 136 (1985).
[fn2] The other landowners had a potential interest in much smaller
acreages: No other party could claim an interest in more than three acres of
the right of way, and only six of the 31 potential claims amounted to more
than one acre. See Amended Complaint in No. 06-CV-0184J etc. (D Wyo.), ¶¶
6-10.
[fn3] The District Court dismissed without prejudice Brandt's separate
counterclaim for just compensation. Brandt then filed a takings claim in the
Court of Federal Claims. That case has been stayed pending the disposition
of this one.
[fn4] Because granting an easement merely gives the grantee the right to
enter and use the grantor's land for a certain purpose, but does not give
the grantee any possessory interest in the land, it does not make sense
under common law property principles to speak of the grantor of an easement
having retained a "reversionary interest." A reversionary interest is "any
future interest left in a transferor or his successor in interest."
Restatement (First) of Property § 154(1)(1936). It arises when the grantor
"transfers less than his entire interest" in a piece of land, and it is
either certain or possible that he will retake the transferred interest at a
future date. Id., Comment a. Because the grantor of an easement has not
transferred his estate or possessory interest, he has not retained a
reversionary interest. He retains all his ownership interest, subject to an
easement. See Preseault v. United States, 100 F. 3d 1525, 1533-1534 (CA Fed.
1996) (en banc).
[fn5] The dissent invokes the principle that "any ambiguity in land grants
`is to be resolved favorably to a sovereign grantor,'" post, at 1 (quoting
Great Northern R. Co. v. United States, 315 U. S. 262, 272 (1942)), but the
Solicitor General does not — for a very good reason. The Government's
argument here is that it gave away more in the land grant than an easement,
so that more should revert to it now. A principle that ambiguous grants
should be construed in favor of the sovereign hurts rather than helps that
argument. The dissent's quotation is indeed from Great Northern, where the
principle was cited in support of the Government's argument that its 1875
Act grant conveyed "only an easement, and not a fee." Id., at 271.
