Rails-to-Trails

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Here’s one we’ve been meaning to post for a few days because it involves the nuts-and-bolts of eminent domain and inverse condemnation work — the calculation of just compensation and damages, and another victory for colleague Thor Hearne.

In a rails-to-trails taking case our of Florida, McCann Holdings, Ltd. v. United States, No. 07-4261 (June 27, 2013), the Court of Federal Claims awarded $3.1 milllion for the taking, which the government claimed was valued at only $825,000. 

We won’t walk through the entire case, but the court’s Opinion and Order is a very good roadmap for how to calculate severance damages in a partial taking of an easement.

Here’s more about the decision from the local paper.

McCann Holdings, Ltd. v. United States, No. 07-4261L (Fed. Cl. Jun 27, 2013)


Continue Reading CFC Provides Roadmap For Proving Damages And Just Compensation

Here’s the third and final amicus brief supporting the petitioner in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. petition filed Mar. 22, 2013). The Pacific Legal Foundation brief argues:

This case raises important questions regarding the common law of property ownership and the certainty of titles in property.

. . . .

As fully set out in the Petition, the Tenth Circuit’s rule directly conflicts with decisions of this Court as well as decisions from the Federal Circuit, the Court of Federal Claims, and the Seventh Circuit. Pet. at 17-34. The split of authority regarding ownership of abandoned railroad rights-of-way has been growing for years, and is well-documented. See, e.g., Pet. Cert. App. at 5-6, 22-24 (discussing split of authority); Hash v. United States, 403 F.3d 1308, 1318 (Fed. Cir. 2005) (same); 11 Powell on Real Property § 78A (referring to the…

Continue Reading One More Amicus Brief In Railbanking Case: Growing And Well-Documented Circuit Split

Here’s the amici brief of the Cato Institute and the National Association of Reversionary Property Owners supporting the petitioners in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. petition filed Mar. 22, 2013).

In that case, the Tenth Circuit’s opinion held that the term railroad “right of way” as used in an 1875 federal statute was a grant of land to railroads in fee simple with an “implied reversionary interest” to the United States, and not merely an easement. The difference is that easements may be extinguished, while reversionary interests are not. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court claiming it and and not Brandt owned the right of way.

The amici brief argues:

This case is important to the Association because the Tenth Circuit’s decision unsettles long-established property interests and clouds…

Continue Reading Amicus Brief In Railbanking Case: Circuit Split May Upset Title To Millions Of Acres

Here’s the amicus brief we filed today on behalf of our colleagues at Owners’ Counsel of America, urging the U.S. Supreme Court to grant cert in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. petition filed Mar. 22, 2013).

That petition asks the Court to review a Tenth Circuit decision that continued a lower court split about the meaning of the term railroad “right of way” as used in an 1875 federal statute and federal land patents subject to the 1875 Act. The issue is whether the federal government retained an “implied reversionary interest” when it issued these patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court asserting…

Continue Reading Amicus Brief In Rails-to-Trails Case: Switching Tracks To Undermine Takings Claims

You’d think the proposition in the title of this post, upheld today by the U.S. Court of Appeals for the Federal Circuit in Ladd v. United States, No. 2012-5086 (Apr. 9, 2013), would seem kind of obvious. That a landowner could not be charged with notice that a government act is a taking if the government admits to not even knowing about the event? But it wasn’t, and required a court of appeals’ opinion to lock it down. 

This case is the latest from our colleague Thor Hearne. Readers know Thor as our semi-regular updater of the latest from the Court of Federal Claims in “rails-to-trails” takings cases, and this appeal is from a Court of Federal Claims case on that subject.

The Federal Circuit has a “bright-line rule” that the six year statute of limitations begins to run on a physical takings claim in a rail-to-trail case…

Continue Reading Federal Circuit: Statute Of Limitations In Tucker Act Doesn’t Start Running Until Govt Provides Notice Of The Taking

If that headline calls out to you, congratuations: you are officially a takings nerd.

In Brandt v. United States, No. 12-5050 (Mar. 26, 2013), the Federal Circuit held that a takings claim originally submitted as a compulsory counterclaim to the federal government’s attempt to quiet title in a District Court action — which was then subsequently filed as a separate action in the Court of Federal Claims — was not barred by 28 U.S.C. § 1500. That statute deprives the CFC of subject-matter jurisdiction “of any claim for or in respect to which the plaintiff … has pending in any other court any suit or process against the United States….”

If this case name sounds familiar, here’s why. Last week we posted the cert petition in a companion case (the one that the government alleged was pending at the time that Brandt filed his takings counterclaim). Brandt’s petition…

Continue Reading Federal Circuit: Takings Counterclaim Not Barred By Section 1500 – A Dismissed Claim Is Not “Pending” Even Though It Might Be Appealed

When a court of appeals opinion holding that the federal government has retained a reversionary interest in railroad rights-of-way contains the following language, that sound you hear is the cracking of smiles on appellate lawyers’ faces:

Though we recognize that the Seventh Circuit, the Federal Circuit and the Court of Federal Claims have concluded that the United States did not retain any reversionary interest in these railroad rights-of-way, we are bound by our precedent.

United States v. Brandt, No. 09-8047, slip op. at 5 (10th Cir. Sep. 11, 2012). That, you see, is the court acknowledging the holy grail of Supreme Court review, the vaunted “circuit split,” and the presence of a genuine disagreement in the law among the lower courts is one of the tickets to getting the Justices’ — or at least the cert pool clerk’s — attention.

Thus, the cert petition filed yesterday seeking…

Continue Reading Circuit Split Alert: New Petition Asks – What Is It About “Easement” That You Don’t Understand?

Check out New York Central Lines, LLC v. State of New York, No. 2011-03494 (Dec. 19, 2012), a short opinion from the New York Supreme Court Appellate Division (Second Department) (if you didn’t know that in New York, the trial court of general jurisdiction is the “Supreme Court,” and the intermediate court of appeals is the “Appellate Division” of the Supreme Court, you have not been watching enough Law & Order).

Both the state’s and the property owner’s valuation experts testified that the highest and best use of the property was its current use, a rail corridor. But the two experts differed on the proper method of valuation.

The State’s expert advocated a cost, or reproduction cost less depreciation, approach to valuation, which is employed in valuing “specialty” properties (see generally Matter of Allied Corp. v Town of Camillus, 80 NY2d 351, 357; Matter of Al …

Continue Reading NY Appellate: How To Value A Rail Corridor

Here’s a short one from the Ohio Supreme Court. In City of Girard v. Youngstown Belt Railway Co., No. 2012 Ohio 5370 (Nov. 21, 2012), the court held:

In this case, we are called upon to determine the extent to which the Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C. 10101 et seq., preempts a state’s eminent-domain action over a parcel of property owned by a railway company. Based on our interpretation of the legislation at issue and its application to the unique facts of this case, we find no preemption, and we therefore reverse the judgment of the court of appeals.

Slip op. at 1-2. Not really an eminent domain heavy issue, and if federal preemption is your thing, check it out. More here from the local newspaper.

City of Girard v. Youngstown Belt Railway Co., No 2012 Ohio 5370 (Nov. 21, 2012)Continue Reading Ohio: Federal Law Does Not Preempt City’s Condemnation

In July, we posted the opening brief in Ladd v. United States, the case in which the Court of Federal claims dismissed the property owners’ Fifth Amendment takings claim stemming from a rail conversion. The CFC held that the claim was filed past the six-year Tucker Act statute of limitations even though the government did not provide the owners notice of the action that they assert was a taking.

The appeal, now pending in the Federal Circuit, asks whether the federal government can take an owner’s property without providing any notice to the landowner, and avoid its constitutional obligation to pay compensation because the statute of limitations began to run when the government issued the order, not when the landowner had notice of the government’s order taking their property? Our colleague Thor Hearne has sent along the recently-filed Reply Brief. which argues:

The government defends the CFC’s dismissal…

Continue Reading Reply Brief In Fed Cir Rails-to-Trails Appeal: Statute Of Limitations Doesn’t Start To Run Until Gov’t Gives Notice Of The Taking