THE LEGAL HISTORY OF FEDERALLY GRANTED RAILROAD RIGHTS-OF-WAY
AND THE MYTH OF CONGRESS'S “1871 SHIFT”

Darwin P. Roberts

Beginning in the 1830s, the United States government granted railroads thousands of miles of rights-of-way across the public lands.  In 1850, Congress began to further subsidize the construction of certain railroads by granting them title to millions of acres of the public lands.  By the late 1860s, however, the public came to vehemently oppose giving vast tracts of the public domain away to railroads.  As a consequence, in 1871, Congress ceased granting subsidy lands to railroads.  Federal grants of railroad rights-of-way, though, continued well into the twentieth century.

The Supreme Court has held that the year 1871 marked a transition between two distinct eras in congressional railroad grant policy.  Before 1871, the Court held, federal grants comprising both rights-of-way and subsidy lands gave railroads a “limited fee” property interest in the right-of-way.  The United States retained a “right of reverter” if the right-of-way was ever abandoned.  But after 1871, according to the Court, Congress no longer wished to “grant lands” to railroads, and altered the nature of its rights-of-way.  Post-1871 rights-of-way became mere “easements.”  This concept of an 1871 shift in right-of-way law was first announced by the Court in 1942 and has defined this area of the law ever since.

Today, many railroads are abandoning federally granted rights-of-way across lands that once were public, but that have long since passed into private ownership.  Federal law allows these rights-of-way to be reused for new purposes, including recreational trails.  This has raised a contentious question that has split the federal courts of appeals: did the federal government retain any ownership interest in railroad rights-of-way that it granted after 1871?  If not, private landowners may own such rights-of-way upon their abandonment.  The government’s attempts to reuse such property could then make it liable for millions of dollars in Fifth Amendment “takings”—a conclusion endorsed by the Federal Circuit in 2005.

This Article contends, however, that the entire notion of an “1871 shift” in federal railroad right-of-way law is a fallacy, derived from the Supreme Court’s 1942 adoption of a faulty historical analysis advanced by the Solicitor General.  The evidence actually indicates that beginning in the 1830s and throughout the nineteenth century, Congress followed consistent policies with respect to its railroad rights-of-way.  Despite characterizing them as “easements” or similar to easements, it viewed them as property over which it retained continued ownership and control.  Moreover, because Congress viewed railroad right-of-way grants as separate from its railroad land subsidy grants, it did not intend to change rights-of-way in 1871 when it ceased granting land subsidies.  The Solicitor General and the Supreme Court erred in 1942 by conflating the two types of grants and misreading the relevant legislative history.  If the Supreme Court has the opportunity to resolve the circuit split, it should overrule its erroneous prior reasoning and affirm the United States’ broad and continuing authority over all federally granted railroad rights-of-way, from both before and after 1871.