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The Legal History of Federally Granted Railroad Rights of Way and the Myth of Congress's '1871 Shift'


Darwin P. Roberts


U.S. Attorney's Office

January 19, 2010

University of Colorado Law Review, Vol. 82, No. 1, 2011

Abstract:     
In the nineteenth century, the United States government granted railroads thousands of miles of rights of way across the public lands. If the railroads abandon those rights of way, federal law allows them to be reused for new purposes, particularly for recreational trails. This has raised a contentious question that has split the federal courts of appeals: did the federal government retain any interest in railroad rights of way granted after 1871? If not, its contemporary reuse of such property potentially makes it liable for millions of dollars in Fifth Amendment “takings” - as the Federal Circuit has recently held.

Beginning in 1850, Congress subsidized the construction of railroads by granting them both rights of way and millions of acres of the public lands. The Supreme Court has held that this type of “land grant” gave the railroads a “limited fee” interest in the right of way property, with a “right of reverter” in the United States if the right of way was later abandoned. In the late 1860s, though, the public came to vehemently oppose giving so much of the public domain away to railroads. As a consequence, federal land subsidy grants to railroads ended in 1871. The Supreme Court has held that because Congress no longer wished to “grant lands” to railroads after that year, Congress not only ceased granting subsidy lands, but also altered the nature of its rights of way, from granting limited fees to granting only easements. This concept of an 1871 shift in right of way law has defined this area of the law since 1942, when the Court first announced it.

This article contends, however, that the entire notion of an “1871 shift” in federal railroad right of way law is a fallacy, derived from the Supreme Court’s adoption of a faulty historical analysis advanced by the Solicitor General. The evidence actually indicates that throughout the nineteenth century, beginning in the 1830s, Congress followed consistent policies with respect to its railroad rights of way. Despite characterizing them as “easements” or similar to easements, it viewed them as property over which it retained continued ownership and control. Moreover, because Congress viewed railroad right of way grants as separate from its railroad land subsidy grants, it did not intend to change rights of way in 1871 when it ceased granting land subsidies to railroads.

The Solicitor General and the Supreme Court erred in 1942 by conflating the two types of grants, and misreading the relevant legislative history. If the Supreme Court has the opportunity to resolve the circuit split, it should overrule its erroneous prior reasoning, and affirm the United States’ broad and continuing authority over all federally granted railroad rights of way, from both before and after 1871.

Number of Pages in PDF File: 80

Keywords: railroads, right of way, land grants, railroad land grants, checkerboard land grants, federal land grants, Pacific railroads, reversionary rights, takings, Hash, Great Northern, 1875 Act, rail trails, rails-to-trails, FGROW, federally granted railroad rights of way, easement, limited fee

JEL Classification: K11, N42, N71, L92

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Date posted: March 9, 2010 ; Last revised: December 30, 2010

Suggested Citation

Roberts, Darwin P., The Legal History of Federally Granted Railroad Rights of Way and the Myth of Congress's '1871 Shift' (January 19, 2010). University of Colorado Law Review, Vol. 82, No. 1, 2011. Available at SSRN: http://ssrn.com/abstract=1567091

Contact Information

Darwin P. Roberts (Contact Author)
U.S. Attorney's Office ( email )
United States
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