Real Estate Law

Danaya C. Wright on Hash v. United States and Marvin M. Brandt Revocable Trust v. United States

By Professor Danaya C. Wright

In this article, Danaya C. Wright examines the 2005 Federal Circuit decision in Hash v. U.S., [enhanced version available to subscribers], and the 2014 Supreme Court decision in Brandt Trust v. U.S., [enhanced version available to subscribers]. These cases arise out of 150 years of complex & changing government policies on transportation infrastructure investment and private landownership. Their resolution continues to undermine efforts to preserve & protect railroad corridors, and they threaten to undermine the rails-to-trails program.



These two cases arise out of a century and a half of complex and changing government policies on transportation infrastructure investment and private landownership. And their resolution continues to undermine efforts to preserve and protect railroad corridors that were assembled with public resources. They threaten to undermine the popular rails-to-trails program while disrupting well over a century of established case law. Unfortunately, the misstep of the Court of Appeals for the Federal Circuit in Hash v. U.S. in 2005 has been further entrenched by the misstep of the Supreme Court in Brandt Trust v. U.S. in 2014. What is perhaps most troubling, however, is the Supreme Court's utter disregard of over a century of well-established precedent, clear guidance from Congress, and a decisive legal history that called out for the Court to correct the mistake of Hash. Instead, the Court peevishly chastised the government for changing its mind. Just because the government argued one position over 70 years ago, it must suffer a defeat today, for the government apparently cannot change its mind, ever. Under such narrow punitive thinking, we would still be living under the laws of Plessy v. Ferguson, Bowers v. Hardwick, or Lochner v. N.Y. Sometimes, however, the government gets it wrong, just as the Court does in these and myriad other cases. Moreover, refusing to engage the complex legal issues or the legal history of the law just because the government argued a particular position 70 years ago undermines our confidence in the Court and makes the job of the lower courts that much harder. When the lower courts tasked with following the decision in Hash stated "[i]t is not for a trial court to disregard appellate decisions we think wrongly decided or poorly reasoned" one would hope that the Supreme Court would have delved a little deeper into the legal issues instead of slapping the government's hand, oblivious to the consequences of its decision. So let me explain how the Court got it wrong and how we might be able to minimize the damage to our future public transportation and communications infrastructure

A. A Little Railroad History—Railroad Expansion

From the earliest years of railroad development in this country in the 1830s, Congress authorized the conveyance to any charter railroad company of a "right-of-way" across the public lands for the construction of its road (federally-granted right-of-way, or FGROW). In 1852, Congress passed a general right-of-way act that gave to railroads a 100' right of way, then between 1862 and 1871 Congress gave railroads not only a 100' or 200' right of way through individual acts to railroads, but the fee ownership in alternating sections 10 or 20 miles on each side of their roadbed for sale to raise construction funds. Then in 1875, discontinuing the checkerboard grants in aid, Congress passed another general right-of-way Act to give a 200' right-of-way to railroads across all public lands.

All of these federal grants used the same term, a right-of-way, to describe the land given to the railroads for construction of their roads and there were no limitations placed on the grants or the property other than the railroad was to be built within a specified period of time. Congress used very different language when granting rights of way across Indian lands, however, limiting the title and restraining the railroad from attempting to acquire greater property interests from the tribes than was given in the federal grants. This was because Indian land was held in trust by the government for the tribes and could not be alienated by either. This distinction between FGROWs is critically important to properly interpreting the language Congress used in these railroad right of way grants and helps us to discern what property interests Congress intended to convey to railroads in Indian and non-Indian lands.

As soon as Congress granted a FGROW for a railroad, from Mobile to Chicago for instance, settlers and land speculators would rush to the area and file patent claims for lands in the likely path of the railroad. In the mid-nineteenth century, land could be bought from the government for $1.25 per acre, but land near a railroad was worth many times that value. By the time the railroad engineers and surveyors had the route mapped out, they often found that most of the road now ran through land being claimed by private settlers, to whom they would have to pay compensation, rather than running through the public domain out of which they received the land at no cost pursuant to their federal grant. 1When the company finally built the road, there would be numerous lawsuits filed by private landowners claiming damages and inverse condemnation for the strip of land being occupied by the railroad. To avoid these conflicts, the land office instituted a policy to withdraw from settlement all the land on both sides of the likely corridor for a period to allow for the railroad's survey and filing a map of definite location. Once the map was filed, the adjacent land was once again made available for settlement and patents were given, subject to the priority of the railroad's rights.


Danaya C. Wright, Clarence J. TeSelle Professor of Law, University of Florida Levin College of Law, received an AB in English from Cornell University, an MA in English from the University of Arizona, an MA in Liberal Education from St. John's College, a JD from Cornell University, and a PhD in Political Science from Johns Hopkins University. She joined the faculty of the University of Florida Levin College of Law in 1998. Professor Wright's scholarly interests include nine-teenth-century property rights of railroads and the conversion of abandoned corridors to public-use recreational trails for which she was asked to give testimony to the U.S. House Judiciary Committee's subcommittee on administrative law. She is one of the leading experts on rail-trail conversions and is frequently asked to give expert testimony in critical rail-trail cases and to assist in writing appellate briefs in the area. She has written an extensive chapter on rail-trail issues for the leading property treatise, Powell on Real Property. See Ch. 78A, Rails-to-Trails: Conversion of Railroad Corridors to Recreational Trails, written by Danaya C. Wright in Powell on Real Property (Michael Allan Wolf, ed., LexisNexis Matthew Bender). [Available online to subscribers]. You can also purchase Powell on Real Property on the LexisNexis Store.

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