Marvin Brandt Beats the USA!

March 10, 2014

Here’s NPR’s March 10, 2014 report on Marvin M. Brandt Revocable Trust v. U.S., titled Family Trust Wins Supreme Court Fight against Bike Trail. The case is all about railroads and easements, but it’s also about consistency.

Chief Justice John Roberts wrote for an eight Justice majority, with no concurring opinions. He describes the effort to build a transcontinental railroad, the giveaways from the federal government to the railroads, to allow the railroads to fund the construction of the rail beds and tracks (and make very wealthy the likes of Crocker, Gould, Harriman, Stanford, etc.)

The case focuses on an 1875 law that limited the railroad giveaways, due to public unhappiness with the robber baron wealth. Basically, the federal government started giving the railroads easements over federal land, as opposed to ownership. An easement represents something less than ownership, and generally relates to a right to travel over property.

In 1942 the Supreme Court decided Great Northern Railway Co. v. U.S. There, the railroad claimed its rights were greater than a right to travel over its easement, and tried to claim the right to oil under its easement. The United States was not impressed, it claimed in the courts that the easement only gave the railroad the right to travel over the property, and the U.S. Supreme Court agreed.

In 1976, the federal government entered into a land swap with Marvin Brandt’s parents. The property the Brandts got had a railroad easement over it. Later, a railroad abandoned the easement. A dispute developed about the use of the rail bed for a recreational bike path. (I’d rather have a bike path than train tracks but Mr. Brandt saw a third way:  neither!)

The government sued, asking a court to determine that the easement remained. Mr. Brandt defended and counterclaimed, alleging that his property was only subject to a railroad easement, the tracks had been ripped up, and there’s no confusing a mountain bike and a diesel engine.

The government prevailed in the District Court and the 10th Circuit Court of Appeals, but it lost in the Supreme Court. The Chief Justice relished telling the United States its case was a loser because it won the Great Northern case. With nothing more than an easement for rail use, when that use ended, the government had no further rights in the property. Case closed.

Leaving aside a touch of the churlish on the part of the Chief Justice, the lesson from this case is simple:  Basics govern, and here the basic law of easements is that the document rules. The easement could not survive its having been abandoned. Interestingly, it appears likely that, had the government made the creation of a more general easement—to succeed any abandonment of the rail easement—a condition of the land swap, there would like be no case. A seller can place any lawful conditions a sale even a right to enter the property from time to time, or have others enter and travel over the property.

One other thing! Although this decision made sense to me, despite the fact that it falls on the conservative end of the spectrum, I wish several members of the Supreme Court held themselves to the same level of consistency they demand of the federal government in Brandt. Just sayin’!

Here’s some additional analysis—focusing more on the effects of the opinion than I have—from Lyle Denniston of


Leave a Reply