100 F.3d 1525 (Fed. Cir. 1996) (en banc)
The Preseaults own a fee simple interest in a tract of land near the shore of Lake Champlain in Burlington, Vermont, on which they have a home.1 This tract consists of several previously separate properties whose identities date back before the turn of the century, including three parcels designated A, B, and C over which the original railroad right-of-way ran.2 Parcels A and B derive from the old Barker Estate property while parcel C is part of the larger Manwell property.3
In 1899 the Rutland-Canadian Railroad Company acquired the rights-of-way at issue on parcels A, B, and C.4 For parcels A and B the acquisition occurred through a Commissioner's Award dated September 2, 1899, that confirmed the railroad had located, entered upon, and occupied the land for railroad purposes and determined damages.5 For parcel C the acquisition occurred through a warranty deed dated August 2, 1899, from Frederick and Mary Manwell to the railroad.6 The Rutland-Canadian laid rails and operated its railroad over these parcels. Over time ownership passed to successor railroads referred to collectively as the Railroad.7
The Railroad continued operations until 1970 when the Vermont Railway ceased active transport on the line and used it only to store railroad cars.8 In 1975 the Vermont Railway removed all railroad equipment, including switches and tracks, from the portion of the right-of-way running over the three parcels.9 The Preseaults acquired parcel C in 1966 while it remained subject to the easement and acquired parcels A and B in 1980 after the tracks had already been removed.10
In June 1985 the State of Vermont Agency of Transportation and the Vermont Railway, as lessors, entered a lease with the City of Burlington as lessee for use of the former right-of-way over parcels A, B, and C as a bicycle and pedestrian path.11 The Interstate Commerce Commission in a January 1986 order authorized the Vermont Railway to discontinue rail service and approved the trail-use agreement.12 An eight-foot-wide paved path was subsequently established on the former right-of-way.13 The path is some 60 feet from the Preseaults’ front door.14 The path is used regularly by members of the public for walking, skating, and bicycle riding.15 On warm weekends up to two hundred people an hour go through the Preseaults’ property.16
The original parties were the Preseaults as plaintiffs and the United States as defendant.17 The State of Vermont intervened and appeared as co-defendant.18 The Court of Federal Claims granted summary judgment for the Government in 1992.19 A three-judge panel of the Federal Circuit affirmed in 1995, after which the full court vacated the panel opinion, took the case en banc, ordered additional briefing and argument, and heard the matter before the in banc court.20
Whether the 1899 transfers to the railroad created easements limited to railroad purposes or fee simple estates in parcels A, B, and C?21
Under Vermont law, railroad acquisitions by commissioner's award or by warranty deed following survey and location convey only an easement for railroad purposes, not fee simple title.22 The estate acquired is limited to that needed for the public purpose and the fee remains in the original owners.23
Yes. For parcels A and B the Commissioner's Award dated September 2, 1899 confirmed that the Rutland-Canadian Railroad had located, entered upon and occupied the land for railroad purposes under the 1898 incorporating act.24 Vermont precedents such as Troy & Boston Railroad v. Potter establish that such acquisitions convey easements.25 For parcel C the warranty deed dated August 2, 1899 from the Manwells, despite its habendum language, is construed under Hill v. Western Vermont Railroad as conveying only an easement because survey and location had already occurred and the proceeding retained its eminent-domain character.26
The 1899 transfers created easements limited to railroad purposes in parcels A, B, and C, with fee simple title remaining in the original owners and ultimately passing to the Preseaults.27
Whether any easements created by the 1899 transfers encompassed public recreational hiking and biking trails under Vermont law?28
The scope of an express easement is fixed by the terms of the grant.29 Under traditional common-law principles followed in Vermont, an easement granted solely for railroad purposes does not extend to public recreational hiking and biking trails.30 The nature of the use and the burden on the servient estate differ materially.31
No. The grants incorporated the 1898 act's purpose of constructing, maintaining and operating a railroad for public conveyance of persons and property by steam or otherwise.32 A public recreational trail involves different users, different frequency of use, and a different burden that cannot reasonably be viewed as within the contemplation of the original parties or necessary to fulfill the granted purpose.33
The easements created by the 1899 transfers did not encompass public recreational hiking and biking trails under Vermont law.34
Related opinions on this issue
Circuit Judge Rader separately emphasized that even if Vermont recognized a shifting-public-use doctrine, a recreational trail remains distinguishable from railroad transportation and therefore exceeds the scope of the original easement.35 This distinction confirms that conversion to trail use effected a taking.36 Realistically, nature trails are for recreation, not transportation.37
Thus, when the State sought to convert the easement into a recreational trail, it exceeded the scope of the original easement and caused a reversion.38 The vague notion that the State may at some time in the future return the property to the use for which it was originally granted does not override its present use of that property inconsistent with the easement. That conversion demands compensation.
Moreover, the United States facilitated that conversion with its laws and regulatory approval.
Whether the railroad easements had been abandoned under Vermont law by 1975 when tracks and equipment were removed?39
Yes. Active rail operations ceased in 1970 when the Vermont Railway used the line only for car storage.42 In 1975 the railroad removed all tracks, switches and other equipment from the segment crossing parcels A, B, and C.43 These acts, together with the later verified notice to the ICC that no local traffic had moved for at least two years, manifest the requisite intent to abandon.44
The railroad easements were abandoned under Vermont law in 1975 when tracks and equipment were removed.45
Related opinions on this issue
Circuit Judge Rader agreed that removal of the tracks and switches in 1975 constituted more than mere nonuse and supplied the unequivocal acts of abandonment required by Vermont precedent such as Nelson v. Bacon and Proctor v. Central Vermont Public Service Corp.46 Non-use of the easement began in 1970; abandonment occurred, as evidenced by the more permanent lack of operability, in 1975.47 I cannot say that the grant of summary judgment on that issue is in error.48 Under Vermont law, abandonment is a question of fact.49
Because the parties did not show the existence of any disputed material fact, the court need not remand this case for additional discovery or presentation of evidence.50
Whether the federal government's authorization and control of the 1986 conversion of the former right-of-way to a public recreational trail effected a taking of the Preseaults' property?51
A physical occupation of private property by governmental authority for a public use constitutes a per se taking under the Fifth Amendment requiring payment of just compensation.52 This rule applies regardless of whether the occupation is accomplished directly or through an authorized state agent.53
Yes. By 1980 the Preseaults held fee simple title to parcels A and B and had held fee simple title to parcel C since 1966.54 All titles were unencumbered after the 1975 abandonment.55 The ICC's January 1986 order authorized the City of Burlington to construct and open an eight-foot-wide paved recreational path on the former right-of-way.56
This resulted in regular public use by up to two hundred people per hour on warm weekends and the installation of posts, signs and a water main that physically occupied the land.57
The federal government's authorization and control of the 1986 conversion effected a taking of the Preseaults' property.58
Whether the United States rather than the State of Vermont bears responsibility for any taking resulting from the trail conversion?59
When the federal government authorizes and directs a state entity to perform acts that physically occupy private property, the United States is the responsible actor for Fifth Amendment purposes even if the state could have acted independently. The federal imprimatur makes the state's actions those of the United States.60
Yes. The ICC order pursuant to the National Trails System Act expressly approved the lease between the State of Vermont, Vermont Railway and the City of Burlington for trail use.61 This order thereby put into motion the physical occupation of the Preseaults' land.62 The federal government exercised plenary control over abandonment and trail conversion, and the State acted under that federal authority.63
The United States rather than the State of Vermont bears responsibility for the taking resulting from the trail conversion.64
Related opinions on this issue
Circuit Judge Rader noted that successive federal statutes—the Transportation Act of 1920, the 4-R Act, and the 1983 Rails-to-Trails amendments—combined with the ICC's regulatory actions to convert the original railroad easement into a perpetual public trail right.65 This conversion effected an uncompensated taking for which the United States is liable.66 Simply, when the Federal Government intrudes upon a property owner's right of use or possession of property, the Federal Government must pay just compensation.67
In this case, the offending laws are the Transportation Act of 1920, the Rail Revitalization and Regulatory Reform Act, and the National Trails System Act Amendments of 1983, each of which took or authorized a complicit state government to take a share of the property right.68