On March 10, 2014, the Supreme Court issued its decision in Marvin M. Brandt Revocable Trust v. United States. The question in the case concerns what happens to a railroad’s right of way granted under a particular statute—here the General Railroad Right-of-Way Act of 1875—when the railroad abandons it: does it go to the Government, or to the private party who acquired the land underlying the right of way? In short, who owns or controls the land when the railroads stop using it for rails, stations, and switching yards?

By a vote of 8-1, the Court held, in an opinion delivered by Chief Justice John Roberts, that under well-established common law property principles, an easement disappears when abandoned by its beneficiary and the owner of the underlying land--here a private party--resumes a full and unencumbered interest in said land. The contrary decision of the lower court was reversed and remanded. Justices Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, and Kagan joined the opinion of the Court. Justice Sotomayor filed a dissenting opinion.

To discuss the case, we have Richard Epstein who is the Laurence A. Tisch Professor of Law at the New York University School of Law, as well as the James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer at the University of Chicago Law School.

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