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Amicus Brief - Do the Feds Have to Pay for Taking a Reversionary Interest?

Last week, Robert Thomas, Bethany Ace and I all filed an amicus curiae brief in the U.S. Supreme Court on behalf of Owners' Counsel of America and the National Federal of Independent Businesses Small Business Legal Center in the case of Brandt v. United States of America.

The Question Presented is:

This case involves the General Railroad Right-of-Way Act of 1875 ("1875 Act"), under which thousands of miles of rights-of-way exist across the United States. In Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942), this Court held that 1875 Act rights-of-way are easements and not limited fees with an implied reversionary interest. Based upon the 1875 Act and this Court's decisions, the Federal and Seventh Circuits have concluded that the United States did not retain an implied reversionary interest in 1875 Act rights-of-way after the underlying lands were patented into private ownership. In this case, the Tenth Circuit reached the opposite conclusion and acknowledged that its decision would continue a circuit split. The question presented is:

Did the United States retain an implied reversionary interest in 1875 Act rights-of way after the underlying lands were patented into private ownership?

Motion for Leave to File Brief Amici Curiae and Brief Amici Curiae of Owners' Counsel of America and Nation... 

Gardening Thoughts from a Hawaii Lawyer - Bananas

Headed to the garden to prune, plant and sow when what should I see but a big bunch of bananas hanging over the wall with my neighbor.

 

 

You would be amazed at how often I hear questions about who owns fruit hanging over the property line or, the less fun variant, can I cut my neighbor's tree that makes a lot of rubbish in my yard.

There is a decision from Hawaii's Intermediate Court of Appeals directly on point.

[Interject the obligatory comment about this author needing a life].

The case is Whitesell v. Houlton and it was published in 1981. 

The facts are straightforward, as is the rule of this case.  A neighbor had a banyan tree that caused problems for his neighbor.  These problems included damage to a roof and car. Ultimately, after several requests to trim the offending banyan, the neighbors endeavored to address the "root" of the problem and hired professionals to trim back the tree.

Litigation ensued:

The lower court gave the Whitesells judgment for, inter alia, the cost of renting the equipment in June 1975, the cost of repairing the garage roof in July 1975, one-half the cost of the tree trimmer hired in May 1976, and the cost of repairing the van.

The banyan tree owner appealed.

The ICA, in what must be the world's shortest opinion, issued a simple ruling:

We hold that non-noxious plants ordinarily are not nuisances; that overhanging branches which merely cast shade or drop leaves, flowers, or fruit are not nuisances; that roots which interfere only with other plant life are not nuisances; that overhanging branches or protruding roots constitute a nuisance only when they actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit; that when overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the damaged or imminently endangered neighbor may cause the cutback to be done at the tree owner's expense.

However, we also hold that a landowner may always, at his own expense, cut away only to his property line above or below the surface of the ground any part of the adjoining owner's trees or other plant life.

Good neighbors are hard to come by and bananas can be found in my neighborhood grocery store.  So, dear readers, while we may have the right to such bananas, in the spirit of Thanksgiving, better to keep the peace and just say: today, we have no bananas.