Rails to Trails: A Train Wreck for Property Owners

Private property rights are under siege by a government program called Rails to Trails


Train tracks
Beau Lawrence

Rails to Trails is a government program to convert abandoned railroad tracks to recreational trails. Sounds great, except that the tracks run over private property, and the private landowners haven't been paid for this permanent land grab. A case before the Supreme Court this term, Brandt v. United States, demonstrates the program's problems.  

The Brandt family owns 83 acres of Wyoming property, split in half by a railroad right of way. Under the General Railroad Right-of-Way Act of 1875, the government paid the Brandts' predecessors to use their land for the limited purpose of laying train tracks. The understanding at the time was that the land would revert to private property if and when the railroads ceased operating. 

The railroad's right to use the Brandts' property ended when it abandoned its right of way to the the land in 2003. The Brandts should now be able to use the strip of land however they please. But in 2005, under the "Rails to Trails" statute, the government told the Brandts that it would be converting the abandoned railway into a recreational trail. 

In 1988, a century after contracts were signed, the federal government passed a "Railbanking" law to preserve its possession and establish its right to turn abandoned railroad tracks into recreational parks. This was not what landowners had agreed to and was not within the terms of the government's limited right to use the Brandts' land.

Converting the tracks into a trail makes the government's use of the land permanent rather than temporary and conditional on the railroad's use. It also changes the nature of how the government plans to use the land. If the government wants to convert the expired railroad easement into a recreational trail, it should have to pay the Brandts just compensation for this new, permanent taking. 

The Pacific Legal Foundation, which filed an amicus brief on the Brandts' behalf, writes that, because existing precedent is so clear, the "case should have been open-and-shut." Instead, the "United States tried to circumvent Federal Circuit precedent by filing a quiet title action in a Wyoming federal district court," claiming that its "implied" right to use the land trumped the Brandts' interest. The government relied on weak authority to convince the Tenth Circuit that it had an "implied reversionary interest" in the railroad easement, and that the common law of property does not apply to disputes over ownership of railroad easements. 

But common law principles of ownership always apply to property. The Supreme Court has repeatedly applied common law to railroad easements, including requiring subsequent purchasers of the underlying land to purchase the entire tract, including the easement portion conditionally contracted to the railroad. That means that the land the Brandts bought included the strip the feds now claim belongs to them, and the price the Brandts paid reflects that they, not the government, own that strip.

In 1875 the government paid landowners minuscule sums of money for the right to run tracks on private property. The government never attempted to make a clean purchase or negotiate permanent takings under the doctrine of eminent domain. 

Today, business has evolved and railroads have abandoned vast swaths of rail crisscrossing the country. In many cases, dangerous, decayed tracks sit forgotten on private land. While pedestrian trails would likely be an improvement to the land, they are categorically different from enjoying the private backyard the Brandts paid for—or even from the commercial wealth the trains would have brought.

None of this controversy is a surprise to the government, which has been defending these programs in court since the beginning. As early as 1942, the Supreme Court interpreted the Railroad Right of Way Act to grant only an easement, rather than a more expansive property right. More recently, in 2002, Assistant Attorney General Thomas L. Sansonetti warned Congress that then-pending rails-to-trails cases across the country involved 4,550 private property owners and exposed the government to over $57 million in constitutionally-required compensation for these takings. 

In 1998, DC attorney Nels Ackerson described Rails-to-Trails as a "vast program for the quiet confiscation of land." He noted that it has "created a blank check drawable from the account of the U.S. Treasury" that "may cost the taxpayers hundreds of millions of dollars or more." 

Property rights are one of the more fundamental principles of free society. The government cannot avoid the Constitution by avoiding the most basic principles of ownership. The Supreme Court should respect landowners' common law rights and expectations and grant quiet title to the Brandts, or else require the government to pay just compensation for taking the Brandts' land. 

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  1. In the 19th century the government stole land to give it to people to build railroads. Now they steal land to turn it into playgrounds for middle class and rich hikers. Neither theft is moral or right. But the first type is at least productive.

    1. -But the first type is at least productive.

      Well, this was the argument of the council in New London. Another area where eminent domain seems to figure is in the Keystone Pipeline project.


      1. Except that the railroads really did help the country. You can debate about whether the takings were necessary, but no question building the railroads in the 19th century did the world a lot more good than hiking trails.

        1. Of course it's not debatable. You need to speak, with assurance, about a counterfactual past in plethora of counterfactual past-futures. It's nonsense whether you're for or against railroads.

          Before they had railroads, people did just fine. After they had railroads, people did just fine. The only issue of note is the shenanigans involved in getting from the one to the other. Can't fix the past from the now. Can take pains to prevent it from happening again.

          Which will be: Never. Not at least until government starts taking about eminent domain and eminent easements on property that belongs to our wise Jurists. Nothing quite so fine as an object lesson in poetic justice.

    2. Can you clarify the idea of stolen land in the 19th century? I thought most of it was "federal" land taken from Native Americans via conquest or treaty. A lot of the land on the plains was then given - gratis - to the railroad companies.

      1. These sources seem to say what John was talking about was common:



        1. Sort of, I guess. Although in both cases the author/speaker makes an assertion (which may well be true but isn't documented).

          This is more what I was getting at:


      2. Fair point. But they gave the railroads huge right aways that they didn't need and that the railroads ended up selling for a fortune. It was pretty corrupt stuff.

        1. Yep

          And the distortions of that blatant cronyism contributed to the appeal of socialism in the late 19th century.

        2. John,
          That land that sold for a fortune was only worth that once the railroad provided a way to get there and get the produce out.
          I'm not defending the hand outs, but they were no where near as valuable until the RR was built.

          1. Yep. The feds should have just instituted a program of homesteading for RRs like they did with the pioneers.

            It is no accident that the ubiquitous legends of graft, corruption and evil on 19th century RRs derive inexorably from the construction of the (originally) subsidized, cronyized RRs, the Union Pacific and the Central Pacific.

            Today the UP is a juggernaut that is run like a *very* tight ship, I am marveled by the efficiency with which this titanic organization is managed. The Central Pacific, on the other hand, is long gone.

            1. The Great Northern Railroad was the better model. Salient point from Wikipedia:

              "The Great Northern was the only privately funded ? and successfully built ? transcontinental railroad in U.S. history. No federal land grants were used during its construction, unlike all other transcontinental railroad."

              1. The "meat" of the Great Northern was built without subsidies or eminent domain, but James Hill did start out by acquiring a few railroads that had already been built with subsidies and eminent domain.

      3. It was certainly "stolen" in that other people were prevented from homesteading it without paying the railroad, even though the railroad itself never occupied or improved most of the land it was given.

        The railroads should have been permitted to take ownership of any land that they actually used, just as any other person who homesteads un-owned land.

    3. They didn't steal it, they took an easement.

      "An easement is a nonpossessory interest in another's land that entitles the holder only to the right to use such land in the specified manner."

    4. Railroad eminent domain theft was not really alll that productive; James J. Hill did a better job without gov't help.
      Source: The Myth of the Robber Barons

    5. Railroad eminent domain theft was not really alll that productive; James J. Hill did a better job without gov't help.
      Source: The Myth of the Robber Barons

    6. While I'm sure that's true in some cases I'm equally sure that it's inapplicable to some percentage as well. And you may not be considering that given the relative "desolation" that often was found where these homesteaders were vast distances from civilization in a horse and buggy era. The introduction of rail traffic was of great value even they did not pay for the inconvenience of laying track on your property. Valuable "consideration" in many a landowners estimation.

      That said, in absence of the conveyance of a "fee" interest of the property and/or the inclusion of rights of reversion should result in the return of the property to the current owners of the adjoining land or compensation for continued encroachment.

  2. Sniff.

    Yup, sure smells like theft, cronyism, and graft in here.

  3. Just another excuse to hand a campaign donor a project funded through a grant with little budgetary oversight.

  4. Dude seesm to know wht he is talking about.


  5. Easements, already established? No mention in this article- I know that the last couple times I bought property, there was all sorts of easement language in the contracts I signed.

    1. Tricky things those easements. They reward the original grantor one time but run nearly for perpetuity, paying the subsequent owners zilch.

      I have two on my acreage, gas pipeline and power line. My lawyer suggests go along with whatever they ask, they have the power to blow a road down their easement (which allows others to your back acreage) at any time.

      1. Why the hell would they pay the subsequent owners anything? If they're recorded, the subsequent owners know what they're buying - land encumbered by an easement. They price accordingly. Markets. Like them.

    2. The railroad easements are for perpetual use for a railroad, until the railroad terminates use of the easement for a railroad, in which case full ownership goes back to the actual property owner. Those railroad easements never said anything about a bike path.

      1. What is the exact wording of the easement at question here?

        1. Don't know. They're usually pretty standard though, written in the 1800s, before bikes even existed.

          They tend to grant a strip of land (right of way, so many feet wide) across property, to a particular railroad company. That easement can be acquired by successor railroad companies, but does not permit additional things within the easement such as fiber optic cable, without a new easement created for that use.

          1. Language in the easement doesn't matter, it's a matter of statutory law -


            "? 1-44.2. Presumptive ownership of abandoned railroad easements.
            (a) Whenever a railroad abandons a railroad easement, all right, title and interest in the
            strip, piece or parcel of land constituting the abandoned easement shall be presumed to be
            vested in those persons, firms or corporations owning lots or parcels of land adjacent to the
            abandoned easement, with the presumptive ownership of each adjacent landowner extending to
            the centerline of the abandoned easement."

            1. Can you find something similar pertaining to public road right of ways? I know that vacated roads have a similar reversion to property owners, supposedly regardless of whether the road is an easement or full dedication "to the public".

  6. Much RR R/W is of the sort the author describes. Some has been legitimately purchased and is deeded.

    1. In Michigan much of the northern rail property was granted directly from the state to the railroads, and has now escheated into park status.
      It never had "original" ownership, unless you fall for the aboriginal claim.

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  8. "Converting the tracks into a trail makes the government's use of the land permanent rather than temporary and conditional on the railroad's use."

    Why? Because fuck you, that's why.

  9. The government's involved. It's shady. What more do you need to know?

  10. Oh dear. This article is at best poorly written. AT BEST. At worst, it's an attack by property owners filled with half-truths.

    First, not all railroad property uses easements. Some was purchased "in fee simple". For example, the Erie's Newburgh Branch was owned outright.

    Second, railroads have three options for tracks they don't need anymore. They can seek abandonment, in which all easements are extinguished. Second, they can "railbank" the property, which preserves the easements but removes the rails. Rails that are simply not being used as "Out of Service"; neither abandoned nor railbanked. The rails remain in place, or possibly not if there was some kind of catastrophic damage to them, e.g. flood, fire, or tornado.

    When a railroad is railbanked, the bridges remain in place, as do the cuts and fills. Usually the rails and ties are removed; often the property is graded for use as a trail, however, the railroad still has the right to put the rails back down, and the easement remains in place.

    Third, with a trail going through your property, your property's value increases. These people who want to get paid to have the government put a trail through their property?? They want to be compensated *twice*. This isn't fair.

    1. Rail-banking is unconstitutional. That's why the land trust case is going to the supreme court.

    2. The possibility of a trail increasing property values is situational. It could certainly decrease property values.

      The increase or decrease in property values is irrelevant to the basic issue of property rights. Having a trail imposed on the property of somebody who doesn't want it isn't fair. Eminent domain isn't fair, but at least compensation (in the constitution), makes it slightly more fair.

      1. Yes. I rather like the idea of the rails to trails program myself, but not at the expense of the rights of property owners.

        In those cases where property owners only granted an easement for railroads and retained all other rights, those wishing to make changes should pay for the right to do so.

    3. These people who want to get paid to have the government put a trail through their property?? They want to be compensated *twice*. This isn't fair.

      Jesus fuck. You truly have to marvel at the logic of the state worshiper. "After the government exceeds its right to the land and uses that taking to turn your property into a tourist attraction, despite any other plans you may have had for it, the property *may* increase in value, and that theoretical increase in value constitutes your compensation for the seizure of the property. To actually purchase the property rights necessary to create the tourist attraction by compensating you for the taken land would be to pay you twice".

      Fucking wow.

    4. Third, with a trail going through your property, your property's value increases.

      Uhh, since fucking when has an easement "increased property value?"

      Being adjacent to a park may increase property values, but a park frequented by drug users and prostitutes sure as Hell won't.

      These people who want to get paid to have the government put a trail through their property?? They want to be compensated *twice*. This isn't fair.

      No, what isn't fair is the government gaining an easement from a third party for other than the intended purpose of the original easement, while foregoing payment for what amounts to a new easement.

      The easement is not the railroad's to give, it's the property owner's.

      1. "Being adjacent to a park may increase property values, but a park frequented by drug users and prostitutes sure as Hell won't."
        You probably won't see prostitution or drug use on the trails far from vehicle access points. The hikers might use soft drugs and have sex, but not too many meth or herion users or prostitutes will be on the trail.

        1. It's totally tangential to the point anyway. If it were 100% guaranteed that the adjacent property would quadruple in value it wouldn't make it right to expand the property right of the railroad beyond the easement they actually paid for.

        2. I see some real winners using secluded bike paths all the time.

        3. I've seen marijuana plants planted alongside the trails--that doesn't make the owners of the land they're planted on too happy.

          Having property values go up (debatable) is only an advantage if the owner decides to sell. If for some reason they decided to stay behind they would now get to pay higher property taxes. Yay!

    5. I think it was generally well written by a layperson. As for the "rights" of the railroad, they are going to be in no small measured by the terms of the individual deeds or other documents of conveyance. To the extent that the state purports to modify those rights they run into eminent domain issues that are central to the issues in this article. Regarding the "value" of a trail bisecting a property, I think that is going to be judgment for the owner of the affected property, not a diarist.

  11. I would appreciate if Reason keeps up to date with this case.

  12. The Federal government declared the Upper Delaware River a scenic corridor which left 2 miles of property along the river in private hands, but placed restrictions on its use. Part of that use was recreational and resulted in an economic boost to the rural economy due to canoers and campers. However the people who owned river front property some of whom were farmers had to deal with the percentage of people who considered it public land and trespassed, littered and broke into homes to steal.

    I imagine the rails to trails will be something like that. It is one thing to have people contained a train pushing through your property and another to have them walking through unrestrained. Most people who use those sorts of trails respect nature and private property, but there will probably be a percentage who will cause problems.

    I'd like more information about how the land was granted to the Brandt's and other owners, how the Dakota were compensated for having their territory turned over to settlers, the problems hikers will bring with them and how they will be mitigated or compensated for, what the two sides of the Supreme court case will be with an expert evaluation of their strengths and weaknesses.

  13. Power does what Power can get away with. We can talk ourselves blue . . .

  14. I really like the idea of converting old railways to bike trails. We live right off the W&OD; trail and it's great.


    1. It costs money--a lot of money--to buy all that land. If some owners aren't interested in selling then a major section of the trail is useless. Most likely the trail is in a politically-unconnected part of the state so the owners' feelings don't matter anyway. Take your pick.

  15. This sounds a bit like the John Wayne Trail in Washington State. The property owners I've talked with were not happy to have the trail run through--it did not increase their property values, they've found illicit plants being grown alongside the trail, there's more litter that needs to be picked up, there's more fire danger from smokers tossing their butts alongside the trail during the dry season, they're worried about public nuisance lawsuits from trespassers leaving the trail to explore formations on private land (and cattle getting out when the trespassers don't close the gates after them) and petty vandalism from users of the trail. To top it off, the state is talking of using eminent domain laws to acquire more of the scenic areas alongside the trail to use for some state park.

    1. Sorry, I left off the bit where Washington state decided to run the trail along the tracks of an abandoned rail line. The property owners I've talked with were of the opinion that the rights would revert to them should the railroad cease using them (they were getting a benefit from the railroad. They get none from the trail).

  16. Would owners be so eager to get back land they're not using if they (and everyone) had to pay Land Dues or a land tax? Talk about compensation, shouldn't owners compensate those whom they exclude from some Earth, the planet being our mutual heritage? And why call the property "private" since the privacy of the owners ? far removed from remote trails ? is not in question?

    Owning land does convey benefits and rights but also duties. The rental value of land belongs not to the owner but is owed by the owner to their community. That's because owners did not create the land nor buy it from any creator and the community as a whole generates the land's rental value.

    Yet owners can wear a happy face and need not worry. Since all owners would be paying in dues and all residents would be getting back dividends, an equal share of the recovered rents. While sharing makes materialists feel threatened and raises their hackles, the very same people cite Singapore as one of the freest places in the world. Ironically, that Asian city uses a system very much like this geonomic one herein described. To catch up to the East, see progress.org.

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