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Justices to Consider U.S. Right to Rights-of-Way

(CN) - The Supreme Court on Tuesday said it will take up the question of whether the United States retains an interest in rights-of-way after the underlying lands were patented into private ownership.

The case, Brandt Revocable Trust v. United States, involved the General Railroad Right-of-Way Act of 1875, which granted thousands of miles of rights-of-ways across the United States.

In July 2006, the United States asked a federal judge in Cheyenne, Wyo., to declare that the 5.35-acre Wyoming and Colorado Railroad Company Inc. right-of-way lying within the Medicine Bow National Forest had been abandoned, and that its title and all rights to it are thus vested in the federal government.

In its complaint, the government identified The Marvin M. Brandt Revocable Trust as one of three entities claiming an interest in the land - in its case, nearly 3 acres.

On March 2, 2009, U.S. District Judge Alan Johnson held that the right-of-way had been abandoned and that the railroad hadn't conveyed the property to any state, county or other municipality within a year of abandoning the property.

That same day, the court also rejected the Brandt claim to a portion of the right-of-way known as the Platte Access Road No. 512, which crosses other lands it owns. The trust appealed.

In a case several decades ago, Great Northern Ry. Co. v. United States, the high court ruled that rights-of-way granted under the act are easements and not limited fees with an implied reversionary interest.

Based on the 1875 law and the Great Northern decision, the Federal and 7th Circuits have concluded that the United States does not retain an implied reversionary interest -- that is, the interest someone has in a property after the preceding estate no longer exists -- in these rights-of-way after the underlying lands were patented into private ownership.

However, the 10th Circuit reached the opposite conclusion and acknowledged that its decision would create a circuit split.

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