I'm excited to see that the Supreme Court granted cert in Brandt v. United States, 710 F.3d 1369 (Fed. Cir. 2013). More applied legal history in property law.... Among the things check out the following from the Cato Institute's brief:
The Tenth Circuit rejected the view of these other courts, looking instead to Marshall, which was premised on a single 1985 opinion by a district court judge and a law review article. [Emphasis in original] ... Even odder was the Tenth Circuit’s reliance on a law review article: Darwin P. Roberts, "The Legal History of Federally Granted Railroad Rights-of-Way and the Myth of Congress’s ‘1871 Shift,’" 82 U. COLO. L. REV. 85, 150-64 (2011). See Brandt I, 496 Fed. Appx. at 825. Mr. Roberts is neither a historian nor scholar; he is a lawyer with the U.S. Attorney’s office.
I would have thought the article would have more credibility because it comes from a practicing lawyer in a high-power job, but for once someone cares whether the author of an article is a legal historian! I hope to have some more to say about this soon. (About the photograph -- this is the old Richmond, Fredericksburg, Potomac line. Obviously it's still in operation. I'm having trouble locating this morning a photograph of an abandoned line.)
Update. Roberts' article is quite serious. The upshot of this is that there's a question whether after 1871 the federal government granted only easements to railroads to operate railroads and thus when the railroad is no longer operating the owners of the underlying property have the property free of all encumbrances. Or whether the federal government granted something more, such as a determinable fee, and retained for itself the reversion. There was a time (like the 1940s) when it benefitted the federal government to argue that it only granted an easement (this meant that the railroads wouldn't have the right to harvest minerals found on "their" property). Now, however, the federal government wants to be able to claim that it granted a determinable fee to the railroads, so that when the property was no longer used for railroad purposes it came back to the federal government, rather than the the owners of the surrounding property.
All of this turns on the doctrine of prior appropriation -- the idea that if there had been a grant of a determinable fee to the railroads that when the United States granted the surrounding land to private citizens it did not/could not grant the reversionary interest. That is, the rights to that property had already been granted to the railroads. That doctrine makes a ton of sense -- and is consistent with decades of doctrine that construes grants made by the government narrowly, precisely because we need to be careful to guard against the careless grant of property by public officials.