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Preseault v. United States

ELR Citation: 27 ELR 20349
Nos. 93-5067, -5068, 100 F.3d 1525/(Fed. Cir., 11/05/1996) rev'd

The court holds that under Vermont law, a Rails-to-Trails Act conversion of an abandoned railroad right-of-way to a public recreational hiking and biking trail is a taking of the underlying fee simple estate. The court first holds that the trial court was correct in finding that the 1899 transfers of three parcels of land to the railroad created easements for use for railroad purposes and that the fee estates remained with the original property owners. It is clear from state statutes and the document conveying the first two parcels of land that the actions of the railroad fall under well-established Vermont laws and procedures for acquisition of rights-of-way by companies incorporated for railroad purposes. With few exceptions, Vermont cases are consistent in holding that, practically without regard to the documentation and manner of acquisition, when a railroad for its purposes acquires an estate in land for laying track and operating railroad equipment, the estate acquired is not more than that needed for the purpose, and that typically means an easement, not a fee simple estate. Although the deed conveying the third parcel appears to be the standard form used to convey a fee simple title, the court holds that the legal effect was to convey only an easement. The deed was executed after the railroad had obtained a survey and location of its right-of-way. It is the act of surveyand location, and not the particular form of transfer, that is the operative determinant.

The court then holds that plaintiffs' property interests are defined by the original conveyances, not, as the government argues, by the evolving enactment and implementation of federal railroad law between 1899 and the date plaintiffs acquired the parcels. The Transportation Act of 1920, which gave the Interstate Commerce Commission (ICC) power over the conduct of railroads, did not purport to address the rights of private-property owners. Further, nothing in U.S. Supreme Court precedent suggests that background principles of a state's property law include a century of federal legislation. The court then holds that the trial court erred in accepting the government's effort to inject into the analysis of this physical takings case the question of the owner's reasonable expectations. Placing restraints on an owner's property use invokes the regulatory takings issue, rather than the question of the government's physical occupation of private property, and raises significantly different legal and factual issues.

The court then holds that the easements granted to the railroad were not sufficiently broad to include a public recreational hiking and biking trail. The easements are express easements that were granted specifically for transportation of goods and persons via railroad. Although a public recreational trail could be described as a roadway for the transportation of persons, the nature of the usage is clearly different and there are differences in the degree and nature of the burden imposed on the servient estate. And even if the easements were broad enough to include use as a recreational trail, the railroad abandoned the easements by shutting down the line and removing the tracks 20 years previously. Thus, the court holds that plaintiffs are entitled to recovery because if the easements were still in existence when the city established the recreational trail, its establishment could not be justified under the terms and within the scope of the existing easements for railroad purposes. Alternatively, plaintiffs may recover because when the ICC issued its order authorizing the city to establish the recreational trail, there was no railroad easement in existence because the easement had been abandoned and the properties were held by plaintiffs in fee simple. Thus, the occupation of plaintiffs' property by the city, under the authority of the federal government, constituted a taking of their property for which the U.S. Constitution requires that just compensation be paid.

Three dissenting judges would hold that the easements were not abandoned, and that under the "shifting public use" doctrine, a recreational trail does not fall outside the easements' scope, because walking, bicycling, and railroading represent different means of transportation.

[Prior opinions in this litigation are published at 20 ELR 20454 and 23 ELR 20391.]

Counsel for Plaintiffs
Patrick W. Hanifin
New England Legal Foundation
150 Lincoln St., Boston MA 02111
(617) 695-3660

Counsel for Defendant
Jeffrey P. Kehne
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before RICH, NEWMAN, MAYER, MICHEL, PLAGER, LOURIE, CLEVENGER, RADER, and SCHALL, Circuit Judges.*

* Chief Judge Archer and Circuit Judge Bryson did not participate in the disposition of this appeal.