Dorothy L Biery and Ors v United States (2014) H&FLR 2014-27

United States Court of Appeals (Federal Circuit)

4 June 2014

Coram: Prost CJ, Schall and O’Malley JJ

Appearing for the Plaintiffs (Appellants): Mark F Hearne, Meghan S Largent, Lindsay SC Brinton, Stephen S Davis and Debra J. Albin-Riley (all of Arent Fox LLP) .
Appearing for the Defendant (Respondent): Nina Robertson (US Dept of Justice) and Robert G Dreher (Acting Assistant Attorney-General)

Catchwords: Kansas – real property – rails to trails – taking – deeds – National Trail Systems Act – fee simple – right-of-way – easement

Facts: The plaintiffs were landowners in Kansas whose properties abutted a rail corridor. The corridor was the subject of various deeds granted by the landowners’ predecessors in favour of a series of operators of the railway. The railway operator abandoned its interest in the rail corridor, which was converted into a recreational trail under the National Trail Systems Act.

The plaintiffs alleged that the conversion of the rail corridor was a taking (or compulsory acquisition) of their property interests and sought compensation. The proceeding was dismissed on the basis that the plaintiffs held no fee-simple interests that could be the subject of a taking*. Their claims were dismissed**. The plaintiffs appealed.

Held: per curiam, upholding the appeal in part and dismissing it in part –

1. State law controls the nature and scope of a property interest in a rail corridor.

Preseault v United States, 100 F. 3d 1525 (Fed. Cir., 1996), followed.

2. In Kansas law, railway operators do not take fee-simple ownership of narrow strips of land taken as rights-of-way.

Harvest Queen Mill & Elevator Co v Sanders, 370 P.2d 419 (Kan., 1962).

3. A deed which directly or indirectly describes or refers to the land’s use or purpose as a right-of-way is considered to have granted an easement. However, where a deed to a railway operator contains no restrictions, reversionary clause or other indications that it is solely for a right of way, the title will be considered to have been granted in fee simple.

Stone v USD No. 222, 91 P.3d 1194 (Kan., 2004) followed.


The Court’s judgment is available here.


* Biery v United States (Court of Federal Claims, 20 August 2009, unreported).

** Biery v United States (Court of Federal Claims, 9 April 2013, unreported)