Thursday, July 24, 2008

Article on Federally Granted Railroad Rights of Way

From: "Roberts, Darwin (USAWAW)"

Dear CPRR Discussion Group:

I've recently completed a draft article entitled The Legal History of Federally Granted Railroad Rights of Way. It reviews the actions of Congress and the Interior Department in making railroad grants (including both right of way grants and checkerboard land grants) during the nineteenth century. It argues that, contrary to the holdings of several courts, there is no historical evidence of a change in the nature of federal railroad right of way grants in 1871, the year the checkerboard railroad grants ended. It concludes that as a consequence, the federal government retains a property interest in railroad rights of way granted both before and after 1871.

I'd be very interested in hearing comments by people familiar with this area of history. The draft is available for free download on the Social Science Research Network:

Thanks very much,
Darwin Roberts

Darwin P. Roberts
Seattle, WA


Blogger CPRR Discussion Group said...

Darwin P. Roberts is Assistant United States Attorney for the Western District of Washington, Seattle, Washington

7/24/2008 10:15 AM  
Blogger CPRR Discussion Group said...


In the nineteenth and twentieth centuries, the United States government granted railroads thousands of miles of rights of way out of the federal public lands. Court decisions, including an influential 1942 opinion by the United States Supreme Court, have held that there was a major shift in federal right of way granting policy in 1871, the year that the federal government ceased granting 'checkerboard' land subsidies to railroads. Courts have held that as a consequence, the federal government has retained only limited rights in railroad rights of way that it granted after 1871. The courts have upheld Fifth Amendment 'takings' claims against the government's reuse of such rights of way for purposes such as 'rail trails.'

This article contends that there is no historical evidence for an 1871 shift in federal right of way law. Based on a review of the history of federal railroad right of way grants and federal railroad land subsidy grants, it concludes that federal right of way grants were part of a Congressional policy that was consistent both before and after 1871. Under that policy, the federal government did not grant railroads full title to their federally granted rights of way. Instead, the government retained ownership and/or control of those rights of way sufficient to control their disposition if later abandoned by the railroads. It concludes, therefore, that the United States government should not be liable for Fifth Amendment 'takings' claims based on new uses of federally granted railroad rights of way."

7/24/2008 10:21 AM  
Anonymous Anonymous said...

As it says in the paper, the views expressed in the paper are entirely my own, and are not those of the United States government, the Department of Justice, or any other current or former employer. Thank you.

7/24/2008 10:24 AM  
Blogger CPRR Discussion Group said...

Also see the discussion on the Legal History Blog.

7/24/2008 10:35 AM  
Anonymous Anonymous said...

The Central Pacific Railroad understood and represented to bondholders in an 1868 prospectus that what it had was an "absolute grant ... of the public lands through which the road runs" which seems entirely supported by the language of Section 3 of the 1862 Pacific Railroad Act which states "That there be, and is hereby, granted to the said company, for the purpose of aiding in the construction of said railroad and telegraph line ... every alternate section of public land ... ".

On page 22, the 1868 prospectus also states that "The Company are now selling quantities of their alternate sections of land ... " How would it have been possible for such sales to proceed or for purchasers from the railroad "to obtain a clear title at once ... " if there was any such federal reversionary interest on that land?

On page 31, it states that "VIII. The grant of land is destined, at an early day to prove of great value, and may realize to the Company an amount equal to the aggregate of First Mortgage Bonds issued on the Road and equipment." How could such land secure the bond holders if the railroad merely had an easement on federal land, and not its ownership?

So, even prior to 1871 the CPRR had a clearly stated understanding that "The United States Government furnishes ... an absolute grant of 12,800 acres of valuable public lands per mile ... ".

7/24/2008 12:59 PM  
Blogger CPRR Discussion Group said...

The above documentation that the CPRR lands (and similarly UPRR lands) do not revert to the federal government if abandoned is consistent with the court decisions. The issue seems to be whether this is also true of railroad land grants after 1871. The Appeals Court for the Federal Circuit held that lands granted after 1871 similarly do not revert to the government, if the railroad right-of-way is abandoned while Mr. Roberts disagrees with the court regarding post 1871 land grants.

7/24/2008 2:12 PM  
Anonymous Anonymous said...

Mr. Roberts' article contends (but does not provide a citation) that "to the extent it described pre-1871 rights of way at all, [Congress] called them 'easements' on a number of occasions — both before and after 1871" but that claim seems rather surprising as the word "easement" does not appear even once in any of the numerous enactments of the Pacific Railroad Acts (1862-1874).

7/24/2008 2:51 PM  
Anonymous Anonymous said...

To Anonymous #1:

Your reference to the CPRR documents is interesting, but they don't seem to mention the right of way, which is the main point of the paper. I'm not arguing there is any evidence of a government reversionary interest in the checkerboard lands (although, obviously, a significant amount of those grants were later forfeited.)

To Anonymous #2:

In fact, the paper discusses these issues at length, with numerous citations. It argues that while the Pacific Railroad acts don't call the rights of way easements, they don't call them fees, either. They just use the same terms as earlier acts, some of which did use the term "easement" (e.g. Act of June 10, 1852, 10 Stat. 8).

7/27/2008 10:35 PM  
Anonymous Anonymous said...

Thomas Jefferson teaches that under our constitution, "Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated." So if the Department of Justice seeks to be true to legal history, the prior question should be what enumerated power allows the United States to engage in the triviality of building bicycle and hiking trails across the land? No wonder the U.S. debt is so out of control, and the dollar debased ... and this during an administration that proclaims itself to consist of strict constructionists!

7/30/2008 12:35 PM  
Anonymous Anonymous said...

To Anonymous on 7/30/08:

As the paper describes, your question was a point of vigorous debate in the eighteenth and nineteenth centuries. By about 1850, though, and certainly after the outbreak of the Civil War, it was generally agreed that internal improvement subsidies were permissible under Const. Art. IV, section 3, giving Congress the "Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States[.]" Given the railroads' utility for mail transport, Art. I, sec. 8, the power to establish "post offices and post roads," was also cited, as well as the Commerce Clause power.

As federal property, the rights of way can be reused as the government sees fit (generally speaking), including for trails. Also, the fact that such reuse is not a taking should reduce net federal expenditures, at least in the short term.

8/03/2008 11:25 PM  
Anonymous Anonymous said...

"...including for trails." If you are speaking about a U.S. Mail or military trail, you would be correct; but, if you are speaking of a recreational or historical trail then I wholeheartedly have to disagree on the basis that the Federal government has no legal authority to allocate any expenditures toward supporting any such purpose. I suppose it could be argued that the Federal government could retain the land while not making any improvements to it, but I can almost guarantee that a "trail" would require Federal monies to maintain.

1/13/2009 6:31 PM  
Anonymous Anonymous said...

See related discussion.

7/27/2011 11:30 PM  
Blogger CPRR Discussion Group said...

See related discussion.

1/14/2014 7:19 PM  

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