Samuel Johnson Trust v. Bayfield County, WI ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1348
SAMUEL C. JOHNSON 1988 TRUST, et al.,
Plaintiffs-Appellees,
v.
BAYFIELD COUNTY, WISCONSIN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06-C-348-S—John C. Shabaz, Judge.
____________
ARGUED NOVEMBER 8, 2007—DECIDED APRIL 2, 2008
____________
Before EASTERBROOK, Chief Judge, and FLAUM and KANNE,
Circuit Judges.
FLAUM, Circuit Judge. At issue in this lawsuit are
Bayfield County’s (“the County”) ongoing efforts to
convert unused railway lines in the County into snow-
mobile trails. As the legal basis for its plans, the County
alleges that the United States retains a reversionary inter-
est in these railroad right-of-ways and that Congress has
established that, pursuant to this reversionary interest, if
the railway lines are formally abandoned, local govern-
ments are then provided with a one-year window with
2 No. 07-1348
which to establish a public highway if they so choose. 43
U.S.C. § 912; 16 U.S.C. § 1248(c). Local landowners
(“Landowners”), who have been using these old railway
lines as their own, took preemptive measures and filed a
quiet title action seeking declaratory relief against the
County and the United States, claiming that the United
States had not retained a reversionary interest over these
particular railway lines, and, in the alternative, that the
land had vested in the Landowners because the one-year
period from the date of abandonment had already lapsed.
The district court never made a determination on these
claims. Instead, the United States filed a Disclaimer of
Interest in the property. See 28 U.S.C. § 2409a(e). The
district court then determined that, even assuming that
the United States retained a reversionary interest and the
railway lines had not been abandoned, the Disclaimer
of Interest had the same effect as eliminating the United
States’s reversionary interest, which the court classified
as a necessary predicate for the County to have any inter-
est in the railway lines. Accordingly, the district court
found for the Landowners. For the following reasons,
however, we vacate the grant of summary judgment for
the Landowners, vacate the quiet title finding in the
Landowners’ favor, and remand for further proceedings.
I. Background
A. Grants to the Railroads
In the 1850’s and 1860’s, Congress passed a series of
laws granting tracts of land and right-of-ways for pur-
poses of constructing railway lines. Particularly relevant
to this case are Acts enacted on August 4, 1852; June 3,
1856; and May 5, 1864. See ch. 80, 10 Stat. 28, 28-29 (1852);
ch. 43, 11 Stat. 20, 20-21 (1856); and ch. 80, 13 Stat. 66, 66-68
No. 07-1348 3
(1864). The parties agree that the railroad’s property
interest in the railway line traversing the property owned
by Samuel C. Johnson 1988 Trust and Imogene P. Johnson
(“SC Johnsons”) was originally acquired by the railroad
via the 1856 and 1864 Acts. This is because those Acts
governed odd numbered sections of property, which
would include the SC Johnsons’ land, located at Section 21,
Township 44 North, Range 7 West in Bayport County. The
parties are in disagreement, however, as to whether the
United States maintained a reversionary interest in this
land. According to the Landowners, the 1856 and 1864
Acts vested the title of fee simple absolute with the State
of Wisconsin, which then in turn transferred this full
property interest to the railroad companies. See 1874 Wis.
Sess. Laws ch. 126, § 1. The County, however, argues
that the Western District of Wisconsin and this Court
have already found that the United States retained a
reversionary interest in odd-numbered sections of Bay-
field County granted to the State of Wisconsin for the
purpose of constructing railroads under the 1856 and 1864
Acts. Mauler v. Bayfield County, 204 F. Supp. 2d 1168, 1176
(W.D. Wis. 2001); Mauler v. Bayfield County, 309 F.3d 997,
1001 (7th Cir. 2002).
Also in dispute is the United States’s reversionary
interest in the parcels of land owned by John and Kay
Hawksford (“Hawksfords”) and Dean and Kathryn
Johnson (“DK Johnsons”), which lie in an even sec-
tion—specifically, Government Lot 2 of Section 32, Town-
ship 44 North, Range 7 West, in Bayfield County. Accord-
ing to the Landowners, railroads seeking rights of way
in even-numbered sections generally obtained this inter-
est through private conveyance or condemnation on a
parcel-by-parcel basis. With respect to the property in
Section 32, the Landowners maintain that a private home-
4 No. 07-1348
steader initially acquired title to the property in 1882 by
patent from the United States, without the United States
retaining any reversionary interest. Approximately
seven months later, the state condemned a portion of this
property, completely outside any federal land grant
program.
The County disagrees with the Landowners’ character-
ization of the property interest over the railway line in
Section 32. The Act of 1852 granted a right-of-way to
railways “charted within ten years hereafter” on the United
States’s public lands, with construction then needing to
be completed within the next fifteen years. Ch. 80, § 1, 10
Stat. 28 (1852). The County maintains that the rail-
way line in Section 32 is covered by this Act because,
even though construction on the line did not begin until
the mid-1870’s, the railroad filed a map with the Land
Office in 1858 that showed the intended railway line. The
County argues that court decisions have not required
railroads to have strictly complied with statutorily im-
posed time limits, and that thus, with the Act of 1852
applying here, the United States retained a reversionary
interest in the property. According to the County, the
1882 land grant to the homesteader and subsequent
state condemnation proceeding did not affect the United
States’s reversionary interest in the railway line.
B. Congress’s Scheme for the United States’s Rever-
sionary Interests
The basis for finding that the United States holds a
reversionary interest in the railway lines can be traced back
to a 1903 Supreme Court decision, where the Court charac-
terized railroad grants as a “limited fee, made on an
implied condition of reverter in the event that the com-
No. 07-1348 5
pany ceased to use or retain the land for the purpose for
which it was granted.” Mauler, 309 F.3d at 1001 (quoting
Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267, 271
(1903)). Subsequently, in 1922, Congress passed the Aban-
doned Railroad Right of Way Act, 43 U.S.C. § 912,
which addressed how Congress wished to dispose of its
reversionary interest. Id., at 999. Section 912 provided
that when a railway line was declared abandoned by
a proper court or by Congress, the United States’s rever-
sionary interest would vest in the adjacent landowner,
unless the abandoned line was converted into a public
highway within one year of the declaration of abandon-
ment. 43 U.S.C. § 912.1 At approximately the same time,
1
The full text of 43 U.S.C. § 912 provides:
Whenever public lands of the United States have been or
may be granted to any railroad company for use as a
right of way for its railroad or as sites for railroad structures
of any kind, and use and occupancy of said lands for such
purposes has ceased or shall hereafter cease, whether by
forfeiture or by abandonment by said railroad company
declared or decreed by a court of competent jurisdiction or
by Act of Congress, then and thereupon all right, title,
interest, and estate of the United States in said lands
shall, except such part thereof as may be embraced in a
public highway legally established within one year after the
date of said decree or forfeiture or abandonment be trans-
ferred to and vested in any person, firm, or corporation,
assigns, or successors in title and interest to whom or to
which title of the United States may have been or may be
granted, conveying or purporting to convey the whole
of the legal subdivision or subdivisions traversed or
occupied by such railroad or railroad structures of any
kind as aforesaid, except lands within a municipality the
title to which, upon forfeiture or abandonment, as herein
(continued...)
6 No. 07-1348
Congress also passed another law permitting the rail-
roads to sell their right of way to state or local govern-
ments to establish public highways.2 Pub. L. No. 66-217,
41 Stat. 621 (enacted in 1920, codified at 43 U.S.C. § 913).
In an effort to preserve these abandoned railway lines
for use as trails, Congress amended § 912 in 1988. 16 U.S.C.
§ 1248(c). Under this amendment, abandoned railway
lines would no longer pass to the adjacent landowner,
but instead the United States would retain title to the
property, provided again that the line was not converted
to a public highway within one year of a determination
of abandonment.3 Id.
1
(...continued)
provided, shall vest in such municipality, and this by
virtue of the patent thereto and without the necessity of any
other or further conveyance or assurance of any kind or
nature whatsoever. . . .
2
This statute, 43 U.S.C. § 913, reads in full:
All railroad companies to which grants for rights of way
through the public lands have been made by Congress,
or their successors in interest or assigns, are hereby autho-
rized to convey to any State, county, or municipality any
portion of such right of way to be used as a public high-
way or street: Provided, That no such conveyance shall
have the effect to diminish the right of way of such rail-
road company to a less width than fifty feet on each side
of the center of the main tract of the railroad as now estab-
lished and maintained.
3
The full text of this amendment, 16 U.S.C. § 1248(c), reads:
Commencing upon the date of enactment of this subsec-
tion [enacted Oct. 4, 1988], any and all right, title, interest,
and estate of the United States in all rights-of-way of the
type described in the Act of March 8, 1922 (43 U.S.C. 912),
(continued...)
No. 07-1348 7
C. Dissolution of the Railway Line
In addition to disputing whether the United States
maintained a reversionary interest in these railway lines,
the County and the Landowners also dispute whether
the railway lines have already been abandoned in accord
with § 912 and § 1248(c). In 1974, the Chicago & North
Western Transportation Company filed a Notice of Pro-
posed Abandonment with the Interstate Commerce
Commission (“ICC”) with respect to the portion of railway
line running through Bayfield County that is relevant to
this case. Then, in 1978, the ICC issued a Certificate and
Order permitting the abandonment of the railway line. One
month later, in April 1978, the railroad cancelled its tariffs
on the line, and in 1980, the railroad pulled up the tracks.
In November 1979, soon before the tracks were pulled
up, the County had declined an opportunity to purchase
this right-of-way.
According to the Landowners, the railway line was
abandoned in accord with the terms of § 912 in either
1978 or 1980,4 while the County contends that a proper
3
(...continued)
shall remain in the United States upon the abandonment or
forfeiture of such rights-of-way, or portions thereof, except
to the extent that any such right-of-way, or portion thereof,
is embraced within a public highway no later than one
year after a determination of abandonment or forfeiture,
as provided under such Act.
4
The Landowners offer various theories as to why this is the
case, including: 1) that the ICC’s 1978 Certificate and Order
operated as an Act of Congress; 2) that the decision in State
v. Holmgren, 332 N.W.2d 311 (Wis. Ct. App. 1983), holding that
(continued...)
8 No. 07-1348
declaration of abandonment has not yet been issued.
Regardless, while the County disputes the validity of the
following actions, on March 4, 1980, the railroad executed
a quitclaim deed purporting to convey its interests over
all the property at issue to the SC Johnsons. The SC
Johnsons then donated the majority of these lands to the
Forest Service, while retaining some of the land for them-
selves, and issuing quitclaim deeds to other parties,
including the Hawksfords and DK Johnsons, whose
properties abutted the right of way.
D. Procedural History
This lawsuit arose out of the County’s ongoing efforts
to convert and integrate abandoned railway lines into
the 500 miles of snowmobile trails that already exist in
the County. See Travel Info: Ashland and Bayfield
County, Snowmobile Report & Information, http://www.
travelbayfieldcounty.com/files/rsnowmobilefr.html (last
visited March 14, 2008). In the hopes of preventing the
County from moving forward with its plan, the Landown-
ers filed an action in federal court against the County and
the United States seeking declaratory relief, see 28 U.S.C.
§ 2201, under the Quiet Title Act, 28 U.S.C. § 2409a. On
4
(...continued)
the railway lines over other properties in Bayfield County
had been abandoned, similarly served as a “decree[ ] by a court
of competent jurisdiction” that the property at issue in this
suit had been abandoned; and 3) that the court can make its
declaration of abandonment retroactive, such that this court or
the district court could issue a declaration that the railway
line was abandoned in 1978. See Vieux v. East Bay Regional Park
Dist., 906 F.2d 1330, 1340 (9th Cir. 1990).
No. 07-1348 9
November 1, 2006, the Landowners filed a motion for
summary judgment, contending that § 912, § 913, and
§ 1248(c) were inapplicable because the United States had
not retained any reversionary interests over the former
railway lines, and alternatively, that the railway lines had
been abandoned for purposes of § 912 in 1978, and thus
the County could no longer lay claim to the property. The
County filed its brief opposing the Landowners’ motion
for summary judgment on November 21, 2006, disputing
both of the Landowners’ claims. On that same date, the
United States filed a Disclaimer of Interest in the property.
This Disclaimer, submitted by the United States Attor-
ney’s Office, stated that the United States had determined
that the lands in question had been deeded without the
United States retaining any reversionary interest in the
property, and that accordingly, the United States, under
28 U.S.C. § 2409a(e), disclaimed all interest in the property
at issue in this suit. The following day, the district
court issued an order confirming the Disclaimer of Inter-
est. Subsequently, the Landowners filed a motion to
dismiss, claiming that the Disclaimer resolved the issues
in their favor in the case.
On January 19, 2007, the district court dismissed the
United States from the case and issued its Memorandum
and Order on the Landowners’ motions. After establishing
that despite the Disclaimer, an independent basis for
federal jurisdiction still existed, see 28 U.S.C. § 2409a(e), the
district court proceeded to analyze the impact the Dis-
claimer had on the County’s asserted property rights over
the railway lines. The court determined that the County did
not acquire any interest in the railway lines until after they
were abandoned, and that prior to that date, the United
States could treat its reversionary interests as it wished.
Accordingly, assuming abandonment had not yet occurred,
10 No. 07-1348
the United States’s Disclaimer of Interest destroyed any
property interest the County had in the railway lines.
Based on these findings, the district court granted the
Landowners’ motion for summary judgment and provided
declaratory relief to the Landowners by quieting title in
their favor with respect to any claim to the property made
by the County under 43 U.S.C. § 912 or 16 U.S.C. § 1248(c).
II. Analysis
A. Federal Jurisdiction
Before proceeding to examine the Disclaimer of Inter-
est’s effect on the merits of this suit, we must first deter-
mine whether this Court has jurisdiction over this case. The
Landowners brought suit under the Declaratory Judg-
ment Act, 28 U.S.C. § 2201, to quiet title in the disputed
property. When the suit was originally filed, federal
jurisdiction existed by virtue of the fact that the United
States was named as a defendant. See 28 U.S.C. § 2409a(a);
see also 28 U.S.C. § 1346(f). This basis for jurisdiction,
however, was eliminated when the district court con-
firmed the Disclaimer of Interest. 28 U.S.C. § 2409a(e).
Thus, in order for the suit to have remained in federal
court, an independent basis for federal jurisdiction was
required. Id. The district court properly found that such
an independent basis exists.
Although the Landowners brought suit under the
Declaratory Judgment Act, this Act does not serve as an
independent basis for federal jurisdiction. Wisconsin v.
Ho-Chunk Nation, 512 F.3d 921, 935 (7th Cir. 2008) (citing
GNB Battery Technologies v. Gould, Inc., 65 F.3d 615, 619
(7th Cir. 1995)). Instead, “jurisdiction is determined by
whether federal question jurisdiction would exist over
No. 07-1348 11
the presumed suit by the declaratory judgment defendant.”
Id. (quoting GNB Battery Technologies, 65 F.3d at 619). Thus,
the issue is whether the County’s presumed complaint
against the Landowners, on its face, would include an
action “arising under” federal law. Caterpillar, Inc. v.
Williams, 482 U.S. 386, 392 (1987); 28 U.S.C. § 1331. Here,
the County’s property interest in the railway lines is de-
pendent upon the United States retaining a reversionary
interest in the land pursuant to the congressional acts
deeding the land away, and then rests upon Congress’s
disposal of this reversionary interest under 43 U.S.C. § 912
and 16 U.S.C. § 1248(c). The centrality of these federal
laws’ interpretation to the proper adjudication of this
suit gives rise to federal jurisdiction. This comports with
a long history of Supreme Court decisions finding fed-
eral jurisdiction to exist over state quiet title actions. See
Grable & Sons Metal Prods. v. Darue Eng’g & Mfg., 545 U.S.
308, 315-16 (2005) (finding federal jurisdiction when
the issue of notice under a federal statute was a critical
element in a quiet title claim) (citing Hopkins v. Walker,
244 U.S. 486, 490-91 (1917) (federal jurisdiction exists over
a quiet title action when the construction and effect of a
federal mining law was an essential, real, and substantial
part of the plaintiff’s claim); Northern Pacific R. Co. v.
Soderberg, 188 U.S. 526, 528 (1903); Wilson Cypress Co. v.
Del Pozo y Marcos, 236 U.S. 635, 643-644, (1915)). Accord-
ingly, having found that federal jurisdiction exists despite
the United States’s Disclaimer of Interest, we turn to the
merits on this appeal.
B. Effect of Disclaimer of Interest
In reviewing the lower court’s decision on the merits,
because this is an appeal from a grant of the Landowners’
12 No. 07-1348
motion for summary judgment, we review the decision
de novo, Jackson v. County of Racine, 474 F.3d 493, 498 (7th
Cir. 2007), drawing all facts and reasonable inferences
in the light most favorable to the nonmovant, the County.
Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007)
(citing South v. Ill. EPA, 495 F.3d 747, 751 (7th Cir. 2007)).
The facts, however, appear to be uncontested, with the
dispute solely involving the legal property interests held by
the different parties. Thus, to the extent that the resolution
of the Disclaimer’s effect on the County’s interest involves
a pure question of law, drawing upon issues of statutory
interpretation, this too we review de novo. Zeigler Coal Co.
v. Office of Workers’ Comp. Programs, 490 F.3d 609, 613 (7th
Cir. 2007) (“We review pure questions of law de novo.”);
United States v. Genendo Pharm., N.V., 485 F.3d 958, 962 (7th
Cir. 2007) (“a question of statutory interpretation [is]
subject to de novo review”).
We note at the outset that we are provided with little
guidance in addressing the effect of the United States’s
Disclaimer of Interest. The statute itself, under which the
United States disclaimed its interest, fails to define
“disclaimer,” does not address under what circumstances
a district court should “confirm” such a disclaimer, and
fails to address what effect, if any, such a disclaimer has
on a suit other than to divest the federal court of juris-
diction under 28 U.S.C. § 1346(f). See 28 U.S.C. § 2409a(e).
Similarly, little help can be found on this matter by
turning to our sister circuits or the lower federal courts.
Fortunately, our task here is a narrow one. Despite the
lack of clarity as to what effect the Disclaimer has on the
County’s interest, the parties in this suit do not dispute
that the United States properly issued its Disclaimer of
Interest, and the County does not directly challenge the
No. 07-1348 13
district court’s confirmation of this Disclaimer, nor raise
any charge that the United States acted in bad faith.
Accordingly, we also find no issue with the United States’s
filing, and the district court’s confirmation, of the Dis-
claimer.5 Furthermore, it is unnecessary for us to deter-
5
We do note, however, that there is some tension in the case
law as to whether a district court, prior to confirming the United
States’s disclaimer, is to ascertain the validity of the United
States’s justification for issuing the disclaimer, or whether
confirmation is a mere formality. Compare Donnelly v. United
States, 850 F.2d 1313, 1317 (9th Cir. 1988) (discussing how the
district court confirmed the disclaimer as “valid” in light of the
United States’s proper conveyance of the disputed property in
accord with the governing statute), with W. H. Pugh Coal Co.
v. United States, 418 F. Supp. 538, 539 (E.D. Wis. 1976) (“confir-
mation of the disclaimer of the United States is deemed a
formality and one which this court should not deny”). There
appears to be greater uniformity among the courts, however, in
finding that a disclaimer should not be confirmed if the United
States is acting in bad faith. See Donnelly, 850 F.2d at 1317 (also
noting that the district court found the disclaimer to be made
in “good faith”); see also W. H. Pugh Coal Co., 418 F. Supp. at
539 (after confirming disclaimer, stating, “If this were a situa-
tion in which the state and federal authorities were attempting
to whipsaw the plaintiff and to harrass it so as to avoid a
resolution of this dispute, I would be reluctant to grant the
dismissal.”). In a case such as this, where the United States
has filed a formal Disclaimer of Interest as part of the quiet title
suit (as opposed to a claim by the United States, for example,
that an alleged prior conveyance of its property served as its
disclaimer of interest), we find it unnecessary for the court to
examine the validity of the underlying factual and legal basis
offered for filing the Disclaimer, although confirmation could
(continued...)
14 No. 07-1348
mine what effect the United States’s Disclaimer had on
parties aside from the County, since the only issue to
determine in this suit is whether the County has
superior title to the Landowners by virtue of § 912 and
§ 1248(c). See United States v. Oregon, 295 U.S. 1, 24-25
(1935) (“A bill to quiet title may not be defeated by show-
ing that the plaintiff’s interest, otherwise sufficient to
support the bill, is subject to possibly superior rights
in third persons not parties to the suit. It is enough that
the interest asserted by the plaintiff in possession of land
is superior to that of those who are parties defendant.”)
(internal citations omitted). Thus, our focus is truly li-
mited to ascertaining the Disclaimer’s effect on the
County’s property interest in the railway lines.
In trying to determine whether the Disclaimer served
to destroy the County’s property interest, it is first neces-
sary to define “disclaimer.” Given that the statute does
not define the term, we turn to the common under-
standing of the word, which is that the Disclaimer operates
as “[a] renunciation of [the United States’s] legal right or
claim” over the railway lines. BLACK’S LAW DICTIONARY
496 (8th ed. 2004); see Bel v. United States, 452 F.2d 683, 693
(5th Cir. 1971), cert. denied, 406 U.S. 919 (1972) (quoting
City Nat’l Bank & Trust Co. v. United States, 203 F. Supp. 398,
402 (S.D. Ohio 1962) (defining disclaimer as “the repudia-
tion or renunciation of a claim or power invested in a
person for which he formally alleged to be his. The refusal,
or rejection of an estate or right offered to a person. The
disavowal, denial, or renunciation of an interest, right, or
5
(...continued)
be withheld if the United States were found to have acted in
bad faith.
No. 07-1348 15
property imputed to a person or alleged to be his.”); see
BLACK’S LAW DICTIONARY 417 (5th ed. 1979) (defining
“disclaimer” in the context of estates as “[t]he act by
which a party refuses to accept an estate which has been
conveyed to him.”). If the Disclaimer is deemed a “renun-
ciation,” the issue then becomes what it is that is
being renounced—that the United States ever held a
reversionary interest in the land, or merely the United
States’s current reversionary interest in the property. If
it is the former, it would mean that § 912 and § 1248(c)
were never applicable to the railway lines at issue in the
suit. If instead it is the latter, then the question is whether
such a disclaimer still renders § 912 and § 1248(c) wholly
inapplicable to the railway lines, or whether, under the
statutory scheme in § 912 and § 1248(c), the County’s
interest is destroyed by the Disclaimer.
We turn first to the question of whether the United
States’s Disclaimer has the effect of renouncing that the
United States ever held a reversionary interest in the
land at issue. As the district court observed below, as a
general matter, under common law principles for trusts
and estates, a disclaimer or renunciation is treated as
making an interest ineffective from its inception. See Jewett
v. Comm’r, 455 U.S. 305, 323 (1982) (Blackmun, dissenting)
(in a trust case, stating, “[a] disclaimer is a refusal to accept
property ab initio”); see also RESTATEMENT (FIRST) OF PROP-
ERTY § 231 cmt. d (1936) (in the estates context, describing
how, “Normally renunciation is not manifested until a
date subsequent to the time when the creating instru-
ment becomes operative. When, however, such renuncia-
tion is manifested, the resulting ineffectiveness operates . . .
as an ineffectiveness in the inception.”) However, this
legal fiction does not alter whether the United States in
16 No. 07-1348
fact retained a reversionary interest in the railway lines
at issue in this suit.
Even if, as a general matter, the mere filing of a dis-
claimer of interest cannot alter the underlying history of
conveyances and property interests surrounding a
given piece of land, the Landowners argue that this Court
should defer to the specific legal assertions made by
the United States in the Disclaimer filed in this suit.
Here, the Disclaimer filed by the United States Attorney’s
Office on behalf of the United States did not merely
disclaim the United States’s interest in the property, but
also included the legal predicate for doing so—namely, that
the United States had not retained any reversionary interest
or right of reentry to the land ultimately deeded to the
Landowners. The Landowners argue that the district court,
upon confirming the Disclaimer, should have accepted
these assertions at face value, and thus found that because
the United States lacked any reversionary interest in
the railway lines, § 912 was inapplicable to the property
at issue and accordingly the County lacked any interest
in the right-of-way. This, however, is not the case. The De-
partment of Justice’s mission “[t]o enforce the law and
defend the interests of the United States,” United States
Department of Justice, Mission Statement, http://www.
usdoj.gov/02organizations/ (last visited on March 10,
2008), and the United States Attorney’s duty to represent
the United States in all civil matters, 28 U.S.C. § 547, does
not bestow that office with the power to authoritatively
determine mixed questions of law and fact, such as
whether the United States originally maintained a rever-
sionary interest over the railway lines at issue in this
suit. Thus, the district court’s confirmation of the Dis-
claimer only confirmed the United States’s renunciation of
its interest in the property as of the date of the Disclaimer’s
No. 07-1348 17
filing—whether the United States ever in fact held a
reversionary interest in the railway lines is a matter left
to the courts, assuming jurisdiction over the suit still
exists.6 See Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is
emphatically the province and duty of the judicial depart-
ment to say what the law is.”); Alaska v. United States, 662
F. Supp. 455, 457-58 (D. Alaska 1987), affirmed by Alaska v.
Ahtna, Inc., 891 F.2d 1401 (9th Cir. 1989) (district court’s
confirmation of United States’s disclaimer of interest did
not strip the court of jurisdiction to review the Secretary
of Interior’s determination of a waterway’s navigability,
the sole issue in determining whether property interest
originally lay with the United States or with Alaska).
Assuming, then, that the United States did in fact retain
a reversionary interest in the railway lines at issue in this
suit, the remaining question is what legal effect, if any,
the Disclaimer now has on the County’s property interest.
Here too, separation of powers concerns exist, which in
this case prevent the Disclaimer from effectively repealing
§ 912 and § 1248(c)’s applicability to this land. As has
already been discussed, § 912, § 913, and § 1248(c) were
passed by Congress pursuant to the United States’s rever-
sionary interest in the railway’s right-of-way. This interest
can best be characterized as a “possibility of reverter,”
which only vests upon abandonment of the railway line,
at which point the interest is still subject to divestment if
a public highway is established within one year’s time.
See Vieux v. E. Bay Reg’l Park Dist., 906 F.2d 1330, 1337 (9th
6
We note that this is not to say that the United States could
not express, as a litigant in this lawsuit, the position it has
adopted in the Disclaimer. We only find that the Disclaimer
does not bind this Court to adopt those legal conclusions.
18 No. 07-1348
Cir. 1990). Tracking the district court’s reasoning, the
Landowners assert that similarly, the County’s interest
in the property cannot vest unless three contingencies
occur: 1) the United States retains its reversionary inter-
est; 2) the railway line is abandoned; and 3) a public
highway is established. Accordingly, assuming abandon-
ment has not yet occurred, the Landowners claim that
the United States was free to alter, amend, or release
the non-vested property interests it held, as well as those
of the County.
The Landowners are partially correct in their argument.
As the cases cited by the Landowners to support their
position reflect, when a legislature disposes of a possi-
bility of reverter in a statute, until that interest vests into
an enforceable right, the legislature is free to repeal that
reversionary interest or amend the contingencies upon
which the interest will vest. Independent School Dist. v.
Smith, 181 N.W. 1, 2 (Iowa 1921);7 Commonwealth Transp.
Comm’r v. Windsor Indus., 630 S.E.2d 514, 521 (Va. 2006)
(“Thus, we are of opinion that until the possibility of
having an estate in the property vested into an enforceable
right, the contingencies upon which it depended and the
7
The relevant language in Independent School Dist. v. Smith
states:
As to the parties who might ultimately become entitled to
a reversion under the provisions of the statute then existing,
no right then vested. The legislature could thereafter have
repealed the provision for reversion, without violating the
rights of anyone. It could have again enacted different
provisions pertaining to reversion, without violating the
rights of anyone. In other words, no one then had a vested
right in the future operation of the statute.
No. 07-1348 19
procedures for exercising the right accrued remained
subject to modification by future amendment.”). Thus, as
reflected by Congress’s 1988 amendment to § 912 with
§ 1248(c), Congress was free to modify the disposal of
the United States’s reversionary interest for railway lines
that had not yet been abandoned according to the terms
set forth in § 912. The Landowners fail to recognize,
however, that there is a distinction between Congress
modifying the disposal of the United States’s reversionary
interest and the United States Attorney’s Office trying to
do the same. While it is uncontested by the County that
the United States Attorney’s Office has been granted the
authority to disclaim the United States’s own interest in the
property at issue, that does not give the United States
Attorney’s Office the authority to also effectively dis-
claim the County’s statutorily created interest. See Royal
Indemnity Co. v. United States, 313 U.S. 289, 294 (1941)
(“Subordinate officers of the United States are without [the]
power [to release or otherwise dispose of the rights and
property of the United States], save only as it has been
conferred upon them by Act of Congress or is to be implied
from other powers so granted.”) If the United States
Attorney’s Office, by filing a Disclaimer of Interest, is “free
to foreclose Bayfield County’s future contingent rights” in
the right-of-way as the district court maintained, this
effectively amounts to the executive branch’s usurpation
of Congress’s decision to bestow the County with a future,
contingent property interest in the right-of-way, creating
separation of powers concerns.
The Landowners further argue, however, that common
law principles must be applied to the property interests
in § 912 and § 1248(c), in which case the Landowners
claim that by the very terms of § 912 and § 1248(c), the
Disclaimer serves to extinguish the County’s property
20 No. 07-1348
interest. According to the Landowners, the Disclaimer
should be treated the same as a “release” of the United
States’s possibility of reverter, which, as the Landowners
maintain, at common law served to convert what was
previously a determinable or qualified fee into a fee
simple absolute. 28 AM. JUR. 2D ESTATES § 210 (2007);
HERBERT T. TIFFANY & BASIL JONES, 2 TIFFANY REAL PROP.
§ 314 (1939). While this Court acknowledges that at com-
mon law, a “release” of a possibility of reverter generally
has this effect, see RESTATEMENT (FIRST) OF PROPERTY § 58
(1936), it is still not altogether clear whether the County’s
interest would invariably be extinguished under com-
mon law principles. First, the authorities cited by the
Landowners do not clearly state whether such a release
invariably destroys the executory limitation that would
attach to the United States’s estate upon reversion of the
right-of-way. See RESTATEMENT (FIRST) OF PROPERTY § 46
cmt. n (1936) (discussing springing executory limitations,
and noting that when a deed “contains a limitation in
favor of persons not ascertainable until after the end of
such prior interests, the conveyor, or his successor in
interest retains a reversionary interest which, at the end of
the other created interests, becomes a present estate in
fee simple subject to an executory limitation of the spring-
ing type.”). Furthermore, it is not a given that a “release” is
the proper analogy to this Disclaimer under common
law principles, or whether a “renunciation” is the better
analog. See RESTATEMENT (FIRST) OF PROPERTY §§ 231,
233 (1936) (discussing “renunciation” and its impact on
succeeding interests). Fortunately, contrary to the Land-
owners’ position, this Court is not required to decipher
how the County’s property interest and the Disclaimer
fit within common law property classifications. As the
No. 07-1348 21
Supreme Court stated in an early case involving a con-
gressional land grant to a railroad:
It is always to be borne in mind, in construing a con-
gressional grant, that the act by which it is made is a
law as well as a conveyance, and that such effect must
be given to it as will carry out the intent of Congress.
That intent should not be defeated by applying to
the grant the rules of the common law, which are
properly applicable only to transfers between private
parties.
Missouri, Kan. and Tex. Ry. v. Kansas Pac. Ry., 97 U.S. 491,
497 (1878); Leo Sheep Co. v. United States, 570 F.2d 881, 885
(10th Cir. 1977) (“In order to determine whether there
was an implied reservation of an easement of access, we
look solely to the intent of Congress, as such will not be
defeated by application of the rules of common law.”)
(citing Missouri, Kan. and Tex. Ry., 97 U.S. at 491). This
rule, specifically articulated by the Supreme Court with
respect to statutorily granted property interests in the
railroads, takes precedent over general language by the
Supreme Court cited by the Landowners that Congress
intends for common law definitions to be applied to terms
not otherwise defined in a given statute. See Neder v. United
States, 527 U.S. 1, 23 (1999) (“Congress intends to incorpo-
rate the well-settled meaning of the common-law terms it
uses . . . ‘unless the statute otherwise dictates.’ ”) (quoting
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 (1992));
see also Evans v. United States, 504 U.S. 255, 259-60 (1992).
Indeed, courts have specifically stated, in reference to
§ 912, that “[t]he precise nature of [the United States’s]
retained interest need not be shoe-horned into any
specific category cognizable under the rules of real prop-
erty law.” Marshall v. Chicago & Northwestern Transp. Co., 31
22 No. 07-1348
F.3d 1028, 1032 (10th Cir. 1994) (quoting Idaho v. Oregon
Short Line R.R. Co., 617 F. Supp. 207, 212 (D. Idaho 1985)).
Accordingly, the Landowners’ claim as to what effect the
Disclaimer has on the County’s property interest under
common law principles is immaterial. Congress, in passing
§ 912 and § 1248(c), provided that local governments could
take claim to properly abandoned railway lines by estab-
lishing a public highway within a one-year time period.
Congress has the means to further amend, modify, or
repeal this property interest, but under the current terms
of the statute, Congress’s intent would be frustrated by
permitting the Disclaimer to extinguish local governments’
interest in establishing a public highway on these lands.
Accordingly, for the reasons discussed, we hold that the
United States’s Disclaimer did not serve to extinguish any
interest the County holds in the railway line, assuming
the United States originally retained a reversionary inter-
est in the right-of-way and formal abandonment, according
to the terms in § 912, has not yet occurred.8 In reaching
8
We observe that this holding is entirely consistent with other
cases to have addressed the effect of a disclaimer of interest
under 28 U.S.C. § 2409a(e). The most closely analogous case is
Leisnoi, Inc. v. United States, 313 F.3d 1181 (9th Cir. 2002), in
which Leisnoi, an Alaska Native village corporation, sought
to quiet title against the United States with respect to land it
had obtained from the United States under the Alaska Native
Claims Settlement Act. Id. at 1182-83. A third-party, Stratman,
who had conducted ranching operations on the land when it
was federally owned, moved to intervene, claiming that the
lands should be returned to the federal government because
Lesnoi did not qualify as a Native Village under the Act. Id. The
United States issued a disclaimer of title, which the district
(continued...)
No. 07-1348 23
this decision, we are mindful of the important policy
considerations raised by the parties and the amicus curiae,
particularly with respect to the County and Congress’s
interest in preserving abandoned railway lines for con-
version into trails, as opposed to the Landowners’ interest
in not being stripped of land they have deemed their own
for over twenty years. These policy concerns, however,
are more appropriately addressed with respect to the
issue of when the railway lines were abandoned according
to the terms of § 912, assuming that the United States did
in fact retain a reversionary interest in the property. Given
that the district court based its grant of summary judg-
ment and order quieting title in the Landowners’ favor
based solely upon what we have found to be an erroneous
finding regarding the Disclaimer’s effect on the County’s
alleged interest in the right-of-way, we remand for con-
sideration of whether the United States did in fact retain
a reversionary interest in the land at issue and, if so,
whether the railroad’s right-of-way has been abandoned
according to the terms of § 912 and § 1248(c).
8
(...continued)
court confirmed, then dismissing Stratman’s motion to inter-
vene as moot. Id. at 1184. The Ninth Circuit affirmed the
dismissal of the motion to intervene. Id. at 1184-85. Contrary to
the Landowners’ claim that Stratman and the County are
similarly situated in both cases, a clear distinction exists.
Stratman had no interest in the disputed property—his sole
claim was that title should remain with the United States. Id. at
1185. In contrast, the County has a statutorily created interest in
establishing a public highway on the railway lines within one
year of abandonment according to the terms in § 912. This
distinction allows for the difference in outcome between the
dismissal in Leisnoi and the continued vitality of the County’s
claim at this stage of the proceedings.
24 No. 07-1348
III. Conclusion
For the foregoing reasons, we VACATE the district court’s
grant of summary judgment and declaratory judgment
quieting title in the Landowners’ favor, and REMAND for
further proceedings consistent with this opinion.
USCA-02-C-0072—4-2-08