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

PLAGER, Circuit Judge.

In this Takings case, the United States denies liability under the Fifth Amendment of the Constitution¹ for actions it took pursuant to the Federal legislation known as the Rails-to-Trails Act.² The original parties to the case were the property owners, J. Paul and Patricia Preseault,³ plaintiffs, and the United States (the “Government”), defendant. The State of Vermont (the “State”), claiming an interest in the properties involved, intervened and, under the joinder rules of the Court of Federal Claims, entered its appearance as a co-defendant. The Court of Federal Claims, on summary judgment after hearings and argument, concluded that the law was on the Government’s side, and rendered judgment against the complaining property owners. Preseault v. United States, 27 Fed.Cl. 69 (1992). The property owners appeal.

The appeal initially was heard by a three-judge panel which agreed with the trial court judgment in the Government’s favor and affirmed. Preseault v. United States, 66 F.3d 1167 (Fed.Cir.1995). Subsequently the full court concluded that the case raised important issues of Constitutional dimension, and that it was not certain that the property owners were wrong in their claims. Accordingly, the panel opinion was vacated, the case was taken in banc, and additional briefing and argument was ordered. Preseault v. United States, 66 F.3d 1190 (Fed.Cir.1995).

The matter having now been heard before the in banc court, and thorough consideration having been given to the issues and to the arguments of the parties and the several amici ⁴, we conclude that, for the reasons we shall explain, the trial court erred in giving judgment for the Government; that judgment is reversed. The case is remanded to the trial court for further proceedings to determine the just compensation to which the property owners are entitled.

A. INTRODUCTION AND SUMMARY

In brief, the issue in this case is whether the conversion, under the authority of the Rails-to-Trails Act and by order of the Interstate Commerce Commission, of a long unused railroad right-of-way to a public recreational hiking and biking trail constituted a taking of the properly of the owners of the underlying fee simple estate. At this point we shall refer to the railroad’s interest in the property by the term “right-of-way.” That term is sufficient to indicate that the railroad had obtained a property interest allowing it to operate its equipment over the land involved. Later in the opinion it will become important to more precisely delineate the nature of the railroad’s property interests, after which the use of the term “right-of-way” will refer only to those defined interests.

The facts of the case are reported in full in the several opinions already rendered in connection with this matter: the decision of the United States Court of Appeals for the Second Circuit, holding the Rails-to-Trails Act constitutional and the Preseaults without remedy, Preseault v. ICC, 853 F.2d 145 (2d Cir.1988) (Preseault I)⁵; the decision of the United States Supreme Court, on certiorari from the Second Circuit, affirming the constitutionality of the Rails-to-Trails Act on its face, but concluding that the Preseaults may have a remedy in the Court of Federal Claims under the Tucker Act for a Fifth Amendment “taking,” Preseault v. ICC, 494 U.S. 1, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990) {Preseault II); the initial decision of the Court of Federal Claims, Preseault v. United States, 24 Cl.Ct. 818 (1992) {Preseault 1), in which the trial judge, after hearing and argument, granted partial summary judgment for the Preseaults, and denied the Government’s cross-motions for summary judgment; and the final judgment of the Court of Federal Claims, reported at 27 Fed.Cl. 69 (1992) {Preseault 2), concluding that the law was against the Preseault’s claim for compensation under the Fifth Amendment, granting the Government’s second cross-motion for summary judgment, and ordering judgment dismissing the complaint.⁶

There are also two decisions in related matters by the Supreme Court of Vermont. The first, in 1985, holds that affected property owners (in that ease the Preseaults and others) cannot maintain a suit in state court for a declaration of rights concerning the matter at issue before us because the matter is exclusively within the province of the Federal Government pursuant to the provisions of the Interstate Commerce Commission Act, and that the state court is therefore without subject matter jurisdiction. Trustees of the Diocese of Vermont v. State, 145 Vt. 510, 496 A.2d 151 (1985). The second state court, decision, some ten years later, affirms an injunction against the Preseaults prohibiting them from using that part of their property subject to the original right-of-way for any purpose other than as members of the general public. State v. Preseault, 163 Vt. 38, 652 A.2d 1001 (Vt.1994). In light of this record, we refer the reader to the earlier opinions for the fall details of the events leading up to this appeal. For purposes of the decision here we summarize and condense that history, and recite only the salient facts relevant to the decision.

On appeal we affirm a summary judgment if the record before us discloses that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Although we give due consideration to the views of the trial court, we decide anew questions about the applicable law, without deference to those views.

In summary, we conclude that the trial court was correct in finding that the 1899 transfers to the railroad created easements for use for railroad purposes; the fee estates remained with the original property owners. (Part C.l.) We accept the Government’s position that ultimately this is a matter to be decided under controlling federal law and Constitution, but we reject the Government’s central thesis that general federal legislation providing for the governance of interstate railroads, enacted over the years of the Twentieth Century, somehow redefined state-created property rights and destroyed them without entitlement to compensation. (Part C.2.) The trial court erred in accepting that thesis.

As far as the Government’s defenses based on the state’s property law are concerned, we conclude that even if these easements were still in existence at the time the trail was created, there was no legal justification for the intrusion upon the Preseault’s property. We find no support in Vermont law for the proposition, propounded by the defendants and accepted by the dissent, that the scope of an easement limited to railroad purposes should be read to include public recreational hiking and biking trails (Part D). But we find no clear error in the trial court’s determination that in fact these easements had been abandoned years before the creation of the trail (Part E), and that determination is affirmed.

Finally, we conclude that the taking that resulted from the establishment of the recreational trail is properly laid at the doorstep of the Federal Government. Whether the State’s role in the matter should have resulted in liability for the State, or whether the State could absolve itself by pointing to the Federal Government, as the State Court held, is immaterial. The Federal Government authorized and controlled the behavior of the State in this matter, and the consequences properly fall there. (Part E.)

B. FACTUAL BACKGROUND

The Preseaults own a fee simple interest in a tract of land near the shore of Lake Champlain in Burlington, Vermont, on which they have a home. This tract of land is made up of several previously separate properties, the identities of which date back to before the turn of the century. The dispute centers on three parcels within this tract, areas over which the original railroad right-of-way ran. The areas are designated by the trial court as Parcels A, B, and C. Two of those parcels, A and B, derive from the old Barker Estate property. The third parcel, C, is part of what was the larger Manwell property.

The Rutland-Canadian Railroad Company, a corporation organized under the laws of Vermont, acquired in 1899 the rights-of-way at issue on Parcels A, B, and C, over which it laid its rails and operated its railroad. Over time the ownership interests of the Rutland-Canadian passed into the hands of several successor railroads with different names; except as it may be necessary to differentiate among them, they will be referred to collectively as the Railroad.

Meanwhile, ownership of the properties over which the rights-of-way ran passed through the hands of successors in interest, eventually arriving in the hands of the Pre-seaults. A map of the Preseault tract, showing the various parcels and the areas subject to the railroad’s rights-of-way, appears in 27 Fed.Cl. at 72, and is reproduced here for the benefit of the reader:⁷

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C. THE PROPERTY INTERESTS

In Preseault II, Justice Brennan writing for the Supreme Court noted the importance of determining the nature of the interests created by these tum-of-the-century transfers:

The alternative chosen by Congress [the Rails-to-Trails program] is less costly than a program of direct federal trail acquisition because, under any view of takings law, only some rail-to-trail conversions will amount to takings. Some rights-of-way are held in fee simple. Others are held as easements that do not even as a matter of state law revert upon interim use as nature trails.

Preseault II, 494 U.S. at 16,110 S.Ct. at 924 (citation omitted).

Justice O’Connor, in a concurring opinion for herself and Justices Scalia and Kennedy, developed the point further:

[T]he parties sharply dispute what interest, according to Vermont law, the State of Vermont acquired from the Rutland Railway Corporation and, correspondingly, whether petitioners possess the property interest that they claim has been tak-en____ Determining what interest petitioners would have enjoyed under Vermont law, in the absence of the ICC’s recent actions, will establish whether petitioners possess the predicate property interest that must underlie any takings claim. We do not attempt to resolve that issue.

Id. at 20, 110 S.Ct. at 926 (citation omitted).

Clearly, if the Railroad obtained fee simple title to the land over which it was to operate, and that title inures, as it would, to its successors, the Preseaults today would have no right or interest in those parcels and could have no claim related to those parcels for a taking. If, on the other hand, the Railroad acquired only easements for use, easements imposed on the property owners’ underlying fee simple estates, and if those easements were limited to uses that did not include public recreational hiking and biking trails (“nature trails” as Justice Brennan referred to them), or if the easements prior to their conversion to trails had been extinguished by operation of law leaving the property owner with unfettered fee simples, the argument of the Preseaults becomes viable.

The determinative issues in the case, then, are three: (1) who owned the strips of land involved, specifically did the Railroad by the 1899 transfers acquire only easements, or did it obtain fee simple estates; (2) if the Railroad acquired only easements, were the terms of the easements limited to use for railroad purposes, or did they include future use as public recreational trails; and (3) even if the grants of the Railroad’s easements were broad enough to encompass recreational trails, had these easements terminated prior to the alleged taking so that the property owners at that time held fee simples unencumbered by the easements.

The Government enriches the case with an argument that would have profound impact on future takings jurisprudence: that the general federal legislation providing for the Government’s control over interstate railroad operations as enacted and amended over the years had the effect of redefining the private property rights of these owners, leaving them without a compensable interest in the land.

Before addressing these several issues, a preliminary matter. There is an alternative way, frequently used today including by the parties here, to describe property transactions involving easements. Instead of calling the property owner’s retained interest a fee simple burdened by the easement, this alternative labels the property owner’s retained interest following the creation of an easement as a “reversion” in fee. Upon the termination, however achieved, of the easement, the “reversion” is said to become fully possessory; it is sometimes loosely said that the estate “reverts” to the owner.

Under traditional common law estates terminology, a “reversion” is a future interest remaining in the transferor following the conveyance of certain lesser estates to a transferee, typically when the transferee takes a possessory estate of freehold, for example a life estate. An easement is not such a possessory estate of freehold.⁸ Traditional characterization describes an easement as a “use” interest, sometimes an “incorporeal hereditament,” but not a “possessory” interest in the land.⁹ Therefore labeling the retained interest a “reversion” is not consistent with the traditional classification scheme, which views the retained interest as a present estate in fee simple, subject to the burden of the easement.

Be that as it may, whether the property owner’s retained interest following the conveyance of an easement is denominated a fee simple estate or a reversion, it is uniformly treated at common law as a vested estate in fee. Under either characterization the result upon termination of the easement is the same. For consistency we use the traditional terminology which recognizes that the transferor remains seised of the freehold estate, and thus labels the owner’s estate as a fee simple, burdened, during the life of the easement, by the easement-holder’s rights.

1. The Interests Created

The question of what estates in property were created by these tum-of-the-century transfers to the Railroad requires a close examination of the conveying instruments, read in light of the common law and statutes of Vermont then in effect. Ideally that question would be decided by the State of Vermont’s courts, utilizing their knowledge of and experience with their state’s property law. However, when the question of the rights of the property owners vis-a-vis the successors of the Railroad was raised in the Vermont courts in the suit brought in 1981, cited above, the Vermont Supreme Court took the position that the state courts were without subject matter jurisdiction due to the pervasive role of the Federal Government in railroad matters. See Trustees of the Diocese of Vermont v. State, 145 Vt. 510, 496 A.2d 151 (1985). The Vermont courts thus declined to address the question. Later, when this question of state law came before this court in banc, the possibility of referring the question back to the state courts was considered. However, at the argument in the case before us we were advised by the State’s Assistant Attorney General that Vermont has no mechanism for having such a question referred by a federal court to the state courts for decision. We have no choice, then, but to determine this question of state law ourselves.

In this undertaking we have the benefit of careful analysis by the trial judge. With regard to the two parcels, A and B, derived from the Barker Estate, the trial judge examined, as have we, the document referred to as a “Commissioner’s Award,” dated September 2, 1899, as well as the relevant cases and statutes of Vermont. The Commissioner’s Award, which is the only document that memorializes the event, is unlike a deed in that it does not contain the usual premises (the clause describing the parties to and purposes of the transaction) or habendum clause (defining the extent of the ownership interest conveyed). Usually in a deed the habendum clause would define the exact interest to be conveyed, whether a fee simple or a lesser interest, although the premises clause sometimes serves as well.

Here, the Commissioner’s Award simply confirms that “the Rutland-Canadian Railroad Company ... for the purposes of its railroad has located, entered upon and occupied lands owned by [the Barkers] ... described as follows [and here follows a metes and bounds description of the strip of land].” The document then states that the owners of the land and the Railroad have not agreed as to the damages to be paid to the owners, that upon application by the Railroad three disinterested commissioners were appointed by the Supreme Court of Vermont, and that “according to the provisions of the Act incorporating said Company and the Statutes of the State of Vermont” the commissioners “appraise and determine the damage to the said owners of said land occasioned by such location, entry and occupation by the said Company” to be a stated sum.

The references to the purposes of the Railroad, and to the provisions of the Act incorporating it, are to 1898 Vermont Acts No. 160, entitled “An Act to Incorporate the Rut-land-Canadian Railroad Company,” approved November 4, 1898. That Act provided that certain named individuals

constituted and created a body politic and corporate by the name of the “Rutland-Canadian Railroad Company,” for the purpose and with the right of constructing, maintaining and operating a railroad for public use in the conveyance of persons and property by the power of steam or otherwise____ Said Corporation shall have and enjoy the right of eminent domain ... [and] may ... take ... such real and personal estate as is necessary or proper in the judgment of such corporation, for the construction, maintenance and accommodation of such railroad ... as the purposes of the corporation may re-quire____

1898 Vt. Acts No. 160, § 1. The Act goes on to state that the corporation shall have all privileges and rights given by the general law to railroad companies for acquiring title and possession to property covered by its location.

It is clear from the relevant documents and statutes that the actions of the Railroad in this case fall under well-established Vermont laws and procedures for acquisition of rights-of-way by companies incorporated for railroad purposes. In her opinion, the trial judge concluded that, in the context of the Vermont procedure for commissioners’ awards for railroad rights-of-way, and in light of the Vermont case law, cited and discussed in the trial court’s opinion, “[t]he portion of the right-of-way consisting of the parcel of land condemned from the Barker Estate and taken by commissioner’s award is indisputably an easement under the law of the State of Vermont.” 24 Cl.Ct. at 827.

As a result of our independent examination of the question we conclude that there is little real dispute about this. That was the rule in the early Vermont cases, and continues to be the rule today. See, e.g., Dessu-reau v. Maurice Memorials, Inc., 132 Vt. 350, 351, 318 A.2d 652 (1974) (“The taking, pursuant to statutory authority, gave the railroad only an easement, not a fee, and upon abandonment, the property reverts to the former owner.”) (citing Troy & Boston RR. v. Potter, 42 Vt. 265, 274 (1869)). In Troy & Boston Railroad v. Potter, the suit was an action of trespass on the freehold, testing the question of whether the original property owner who sold the right-of-way to the railroad retained the right to harvest the herbage and other products of the soil growing on the right-of-way. The right-of-way had been surveyed and located, and there was some dispute over whether a conveying document had been properly executed and recorded. The court held that, regardless of the recording question, the survey and location of the road is what constitutes the taking of the land over which it was laid. Troy & Boston R.R. v. Potter, 42 Vt. at 272. Consistent with its earlier decision in Hill v. Western Vermont. Railroad, 32 Vt. 68 (1859), the court deemed the railroad to have acquired only an easement and not a fee, but nevertheless concluded that the railroad had the sole and exclusive possession of the land while in the exercise of that easement, “so to keep it as to exclude all probability of any accident resulting from any outside interference with such possession.” Troy & Boston R.R. v. Potter, 42 Vt. at 276. With few exceptions the Vermont cases are consistent in holding that, practically without regard to the documentation and manner of acquisition, when a railroad for its purposes acquires an estate in land for laying track and operating railroad equipment thereon, the estate acquired is no more than that needed for the purpose, and that typically means an easement, not a fee simple estate.¹⁰ The trial court fully and correctly analyzed the matter; it hardly needs further elaboration. We find no error in the trial court’s analysis and conclusion, and it is affirmed.

Determining the provenance of the third parcel, C, derived from the Manwell tract, tests the above stated proposition even further. The operative instrument is a warranty deed, dated August 2,1899, from Frederick and Mary Manwell to the Railroad. The deed contains the usual habendum clause found in a warranty deed, and purports to convey the described strip of land to the grantee railroad “[t]o have and to hold the above granted and bargained premises ... unto it the said grantee, its successors and assigns forever, to its and their own proper use, benefit and behoof forever.” The deed further warrants that the grantors have “a good, indefeasible estate, in fee simple, and have good right to bargain and sell the same in manner and form as above written____” In short, the deed appears to be the standard form used to convey a fee simple title from a grantor to a grantee.

But did it? At the outset it should be noted that the resolution of this issue mil not moot the question of the Government’s potential liability for its action in creating the recreational trail, since, as held above, the A and B parcels unquestionably involved conveyances of easements and not fee simple estates, and thus the question of a taking of the Preseaults’ property remains to be decided. The issue of ownership of Parcel C does go to the question of damages, however. As noted earlier, if the Manwell transfer was a conveyance in fee simple, the Preseaults would have acquired no interest in that strip of land, and can claim no damages for its later use as a recreational trail.

At trial, the Preseaults argued that, although the Manwell deed purports to grant a fee simple, the deed was given following survey and location of the right-of-way and therefore it should be construed as conveying only an easement in accordance with Vermont railroad law. The Government responded that, while it was true that survey and location of the railroad’s right-of-way had occurred, no “formal” eminent domain proceedings had taken place, and therefore the deed should be taken at its face as a conveyance in fee simple. Each side cited Vermont cases to support its position. The trial court, after reviewing and discussing at length the cases and other relevant materials, concluded that “[u]nder well-settled Vermont law, the property interests in the parcel ... conveyed following survey and location by warranty deed, amounted to [an] easement[ ]____” 24 Cl.Ct. at 830.

Our independent review of the state of Vermont law on this issue leads us to conclude, despite some uncertainties in the matter, that the trial court is correct. Part of the problem is that the Vermont cases that seem most on point are quite old. Assuming the Vermont courts would follow its precedents, a fair assumption, the probable outcome is that, despite the apparent terms of the deed indicating a transfer in fee, the legal effect was to convey only an easement. Two cases, from among others, will illustrate why.

In Hill v. Western Vermont Railroad, 32 Vt. 68, the railroad had a contract with one Josiah Burton to purchase some land for railroad purposes. The bond, or contract, entered into before the railroad had surveyed their right-of-way called for Burton to convey such lands “as shall be required” for the company’s road. Plaintiff, a creditor of the railroad, attempted to levy on a part of the land potentially subject to the contract. The railroad defended against the levy by arguing that the tract at issue was not needed by the railroad for its purposes, and thus Burton could not have been made to sell it to the railroad. Since, it was argued, the claimed land was not subject to contract enforcement, it was not subject to the levying creditor.

The Vermont Supreme Court held for the railroad. The court observed that railroads acquire needed land either by order of a designated public body (through the exercise of eminent domain) or by consent of the landowner, although even in the latter case “the proceeding is, in some sense, compulsory.” Id. at 75. Thus,

[i]n either mode of appropriating land for the purposes of the company, there is this implied limitation upon the power, that the company will take only so much land or estate therein as is necessary for their public purposes. It does not seem to us to make much difference in regard to either the quantity or the estate whether the price is fixed by the commissioners or by the parties.

Id. at 76. The court held that the estate which Burton was to convey would be “a mere easement for a particular use,” and under the governing statute would not be subject to a levy. Id. at 77.

Ten years later the Vermont Supreme Court decided Troy & Boston Railroad v. Potter, discussed above. As noted, the right-of-way in that case had been surveyed and located, but there was some dispute over whether a conveying document had been properly executed and recorded. The court held that, regardless of the recording question, the survey and location of the road is what constitutes the taking of the land over which it was laid. Id., 42 Vt. at 272. Consistent with Hill, the court deemed the railroad to have acquired only an easement and not a fee.

Thus it is that a railroad that proceeds to acquire a right-of-way for its road acquires only that estate, typically an easement, necessary for its limited purposes, and that the act of survey and location is the operative determinant, and not the particular form of transfer, if any. Here, the evidence is that the Railroad had obtained a survey and location of its right-of-way, after which the Manwell deed was executed confirming and memorializing the Railroad’s action. On balance it would seem that, consistent with the view expressed in Hill, the proceeding retained its eminent domain flavor, and the railroad acquired only that which it needed, an easement for its roadway. Nothing the Government points to or that we can find in the later cases would seem to undermine that view of the case; the trial court’s conclusion that the estate conveyed was an easement is affirmed.

We thus conclude that fee simple title to all three parcels in dispute remained with their original owners, subject only to the burden of the easements in favor of the Railroad. Those titles passed through various hands, coming to rest eventually in the hands of the Preseaults, where they lay in 1986 when the public recreational trail was created by the Government’s action.

2. The Impact of Federal Legislation

The United States argues that the property interests in Parcels A, B, and C at the time the Preseaults acquired them are defined not by the original conveyances, as understood pursuant to state law, but by the evolving enactment and implementation of federal railroad law between 1899 and the date (1980 for parcels A and B; 1966 for parcel C) the Preseaults acquired the parcels. As a consequence, says the Government, when the Preseaults bought the land whatever rights might have existed in prior owners regarding possession following abandonment of the easements no longer existed, those rights having been modified or abolished by the Federal Government’s plenary authority over rail operations. There are several flaws, both of logic and of law, in this argument.

There can be no denying that the Federal Government, beginning as early as 1920, has occupied the field of regulation of interstate railroad operations, preempting any pattern of conflicting state regulation. See, e.g., Transportation Act of 1920, ch. 91, 41 Stat. 456 (1920); Rail Revitalization and Regulatory Reform Act of 1976, Pub.L. No. 94 — 210, 90 Stat. 31 (1976) (“4-R Act”); 49 U.S.C.. §§ 101 et seq. And there can be no question that if the Federal Government wishes to create a national network of public recreational biking and hiking trails, it is within its power to do so. See Preseautt II, 494 U.S. 1, 110 S.Ct. 914,108 L.Ed.2d 1. And that power includes the power to preempt state-created property rights, including the rights to possession of property when railroad easements terminate. Id. However, as Justice O’Con-nor succinctly pointed out in her concurring opinion, having and exercising the power of preemption is one thing; being free of the Constitutional obligation to pay just compensation for the state-created rights thus destroyed is another. Id. at 22, 110 S.Ct. at 927.

The 1899 conveyances of Parcels A, B, and C established state-created rights in the owners of the underlying land to have unfettered possession upon the termination of the railroad’s easements. If those rights were subsequently and sub rosa destroyed by Federal legislation, prior to the acquisition of the properties by the Preseaults, when did it happen? Could the Transportation Act of 1920 by itself have done it? Not very well. The passage of that Act, which in essence gave the ICC regulatory power over the conduct of railroads, including the establishment and cessation of service to any given community, in and of itself terminated no easements. The Act did not purport to address the rights of private property owners; indeed, it affected railroad operations themselves only with regard to future conduct and then only upon the issuance of individual orders of the ICC. And indeed, no change in the service use of Parcels A, B, and C occurred until 1970, some fifty years after enactment of the original Act.

If in 1920 the then-owners of these parcels had brought suit against the United States for a taking as a result of the enactment of the Transportation Act of 1920, it is difficult to imagine that any court would have granted them an award. The owner would have had to argue that the taking was a regulatory taking, since no actual physical occupation by the Government happened until fifty years later. But that was not a likely argument in 1920. The concept of regulatory takings as we know them today was not yet born; Justice Holmes did not utter his famous statement about regulation that “goes too far” until two years later.¹¹

Furthermore, enactment of broad general legislation authorizing a federal agency to engage in future regulatory activity is not the type of government action that alone supports a taking claim. See, e.g., Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (provisions of Surface Mining Control and Reclamation Act prescribing performance standards and authorizing variances for land development, including provisions prohibiting mining in certain locations, did not, on their face, violate the takings clause). If Congress intended the 1920 Act to have such an effect, contrary to all established assumptions about general legislation, and with the result of directly obligating the Government to a potentially enormous liability of unknown dimensions for takings throughout the United States, there surely would have been some indication of that intent in the legislative history, if not in the legislation itself. The Government points to none, because none exists.

The same problem prevails with regard to the enactment in 1976 of the 4r-R Act, which contained authorization for the ICC to order a railroad, proposing to dispose of an unneeded right-of-way, to first offer it for sale for “public purposes.” 49 U.S.C. § 10906 (1994). And even if the 1983 Rails-To-Trails Act was part of the evolving history pre-Preseault (which it was not since their ownership of all three parcels was vested by 1980), that Act also requires an administrative decision to apply the law to any given unused easement. Until the ICC makes the administrative dedsion to convert an unused right-of-way to a trail, rather than simply permit abandonment, and finds an appropriate public agency to operate the trail, a landowner’s suit for a taking would run afoul of established requirements for exhaustion of administrative remedies. See, e.g., Hodel, 452 U.S. 264,101 S.Ct. 2352, 69 L.Ed.2d 1; Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985).

Thus any property owner who was prescient enough to allege a regulatory taking following the enactment of the Transportation Act of 1920, in addition to having some doctrinal explaining to do, presumably would have been met by an equally prescient Government with the defenses of absence of ripeness and failure to exhaust administrative remedies.

The Government attempts to evade this legal morass by not identifying any specific event that destroyed these property rights created back in 1899, but by instead invoking the broad concept that “background principles” define property rights, suggesting that there is nothing to preclude the use of federal law as well as state law in selecting the relevant “background principles.” In support of this broad principle the Government relies heavily on phrases extracted from the Supreme Court’s recent decision in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992).

But Lucas provides no such support. The background principles referred to by the Court in Lucas were state-defined nuisance rules. Id. at 1029-32, 112 S.Ct. at 2900-02. In Lucas the Court took the position that if the State of South Carolina wished to control what it considered undesirable conduct by property owners (in that ease building a house on beachfront property), a regulatory agency’s order preventing the conduct was non-compensable under the Fifth Amendment if the imposition did little more than echo similar constraints available under the State’s traditional nuisance law. In other words, the State could impose non-compensa-ble restraints on property owners either through court-ordered injunctions or administrative agency orders, so long as either were within the scope of established state law principles of common law nuisance, principles which inhere in every property owner’s title. Id.

Nothing in Lucas suggests that the background principles of a state’s property law include the sweep of a century of federal regulatory legislation, and indeed much of what the Supreme Court said then, as well as in Preseault II, about property rights indicates to the contrary. Nor is there any suggestion in this case that the Preseaults’ use of their property could be considered in any way to be a public nuisance under traditional nuisance concepts, justifying the intervention of state authorities.

The Government cites two recent cases by this court, M & J Coal Co. v. United States, 47 F.3d 1148 (Fed.Cir.), cert. denied, — U.S. —, 116 S.Ct. 53, 133 L.Ed.2d 18 (1995), and California Housing Securities, Inc. v. United States, 959 F.2d 955 (Fed.Cir. 1992), as evidence that federal regulatory law generally modifies state property rights, and renders conflicting state-created property rights unenforceable and noncompensable. In M & J Coal we held that the Government, in enforcing the provisions of the Surface Mining Control and Reclamation Act of 1977, could require a coal mine operator to mine in a manner that prevented surface subsidence, and thus prevent harm to the interests of third parties. We rejected the companies’ contention that enforcement of these safety standards took their property in violation of the Fifth Amendment. In California Housing, we upheld the right of federal bank regulators, in the course of enforcing the federal regulatory framework governing the banking industry, to seize the books and papers and occupy the premises of a bank that was subject to an enforcement action.

In both cases what was at issue was the reasonableness of the Government’s actions in enforcing the law. Since no one has a property right to violate otherwise valid laws controlling social conduct, the claims that enforcement of the law, found to have been conducted reasonably under the circumstances, constituted a taking under the Fifth Amendment were unavailing. In the Pre-seaults’ case, the occupation of their property by the Government was not in pursuance of an enforcement action to correct prohibited conduct on their part, unless it can be said that their desire to enjoy their private property without sharing it with the public falls under that rubric.

This argument, that the Preseaults’ title somehow incorporates the federal transportation regulatory statutes enacted since the 19th Century, was made by the Government to the trial court, and again in its opening brief before the original panel, based on a different theory than the Lucas “background principles” concept presented to the in banc court. It is unclear whether the Government intended to abandon the earlier theory, but since it was the one accepted by the trial court in holding for the Government, it warrants examination.¹²

The argument goes as follows. These regulatory statutes governing railroad operations, at least the original statute enacted in 1920 authorizing ICC jurisdiction, were on the books when the Preseaults began buying the parcels at issue. As a consequence, the Preseaults should have anticipated that at some time in the future the Government might exercise its general regulatory powers in a way that could frustrate the Preseaults’ interest in obtaining the land free of the easement upon its abandonment by the railroad. Thus the Preseaults could have no “reasonable expectations” that they would ever get the property free of the encumbering easement even if the railroad ceased to use it. Absent such an expectation, the Pre-seaults cannot complain that anything was taken from them; the title acquired by the Preseaults in effect has been modified by the history of federal regulatory enactments.

Support for this novel notion is found in two sentences lifted out of context from the Supreme Court’s decision in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), which ironically is the decision that definitively established the rights of a property owner to compensation whenever there is a physical taking, even a relatively minor one. In Loretto, Justice Marshall, writing for the Court, said: “We affirm the traditional rule that a permanent physical occupation of property is a taking. In such a ease, the property owner entertains a historically rooted expectation of compensation____” Loret-to, 458 U.S. at 441, 102 S.Ct. at 3179. The Government reverses the order of the sentences, as if it read, “If the property owner has an expectation of compensation, then a permanent physical occupation of property is a taking.” In effect, the Government argues that Loretto stands for the proposition that an owner’s property rights are defined by what the owner might (should?) have believed the law to be at the time she acquired her property, and that that belief makes it so.

But what Justice Marshall clearly said was that a physical occupation of one’s property by the Government, that is, a taking of a recognized property interest, invokes a general expectation of compensation. The Government’s reading reverses the sentences, standing the law on its head. They read it to say that an owner’s subjective expectations of keeping or losing her property under various possible scenarios define for that owner the extent of her title. Just the reverse is true. It is the law-created right to own private property, recognized and enforced by the Constitution, legislation, and common law, that gives the owner an historically rooted expectation of compensation. The expectations of the individual, however well- or ill-founded, do not define for the law what are that individual’s compensable property rights.

This issue of title and ownership expectations must be distinguished from the question that arises when the Government restrains an owner’s use of property, through zoning or other land use controls, without disturbing the owner’s possession. Placing restraints on an owner’s use of her property invokes the regulatory takings issue, rather than the question of the Government’s physical occupation of private property, and both factually and legally raises significantly different issues. In the regulatory taking eases the owner’s reasonable investment-backed expectations have been held to be relevant to the question of whether a regulatory imposition goes too far in constraining the owner’s lawful uses of the property. E.g., Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). As the Supreme Court makes clear, these two quite different situations call for quite different analyses. The Government’s attempt to read the concept of “reasonable expectations” as used in regulatory takings law into the analysis of a physical occupation case would undermine, if not eviscerate, long-recognized understandings regarding protection of property rights; it is rejected categorically.¹³

The trial court erred in accepting the Government’s effort to inject into the analysis of this physical taking case the question of the owner’s “reasonable expectations.” Under the governing law of the State, the Pre-seaults, successors in title to those who owned the property when the easements were created, owned the same title and interest as they, and are entitled to the same protections the law grants.

D. The Scope of the Railroad’s Easement

We turn then to the question of whether the easements granted to the Railroad, to which the Preseaults’ title was subject, are sufficiently broad in their scope so that the use of the easements for a public recreational trail is not a violation of the Preseaults’ rights as owners of the underlying fee estate. Both the Government and the State argue that under the doctrine of “shifting public use” the scope of the original easements, admittedly limited to railroad purposes, is properly construed today to include other public purposes as well, and that these other public purposes include a public recreational hiking and biking trail. Under that theory of the ease, the establishment in 1986 of such a trail would be within the scope of the easements presumably now in the State’s hands, and therefore the Preseaults would have no complaint. On the other hand, if the Government’s use of the land for a recreational trail is not within the scope of the easements, then that use would constitute an unauthorized invasion of the land to which the Preseaults hold title. The argument on this issue assumes that the easements were still in existence in 1986, and for purposes of this part of the discussion we assume they were.

As an initial matter, we have found no Vermont case, either in this century or the last, and the parties point to none, in which the Vermont courts establish or apply something called the “shifting public use” doctrine. The statement in the dissent that “Vermont common law includes the ‘shifting public use’ doctrine as part of its law concerning the abandonment of easements” appears to be without support in any opinions of the Vermont courts. Thus the legitimacy of that phrase in the context of Vermont law, as well as its meaning, remain unclear.¹⁴

What is the case is that early opinions of the Vermont Supreme Court gave railroads broad scope to “do any act upon the land conducive to those public uses for which their charter was granted.” Connecticut & Pas-sumpsic Rivers R.R. v. Holton, 32 Vt. 43, 47 (1859). In Brainard v. Missisquoi Railroad, 48 Vt. 107 (1874), the court held that a railroad company that purchased a plank road company and replaced a plank road with a railroad maintained the right to an easement granted to the plank road company. The court held that the land did not “revert” to the owner of the fee estate, and that he was entitled to damages only for his loss of access to a public highway.¹⁵

As discussed previously, the Rutland-Ca-nadian Railroad Company was incorporated by Act of the Vermont legislature solely “for the purpose and with the right of constructing, maintaining and operating a railroad for public use in the conveyance of persons and property by the power of steam or otherwise.” The Act of incorporation specified that the corporation “may receive, take, hold, purchase, use and convey such real and personal estate as is necessary or proper in the judgment of such corporation, for the construction, maintenance and accommodation of such railroad as aforesaid, and its structures and appurtenances, and as the purposes of the corporation may require____” And, as explained earlier, the governing documents, in the case of Parcels A and B the Commissioners’ Award, in the case of Parcel C, the Manwell deed, do not themselves contain defining language, but instead incorporate the purposes specified in the incorporation Act. The question thus is whether an easement acquired for such specifically described purposes may be read broadly enough to include a public recreational biking and hiking trail. That precise issue has yet to be presented to the Vermont court.¹⁶

In the absence of a Vermont case on point, we must seek the answer in traditional understandings of easement law, recognizing as we must that Vermont follows and applies common law property principles. The easements involved here are express easements, meaning that the scope of the easements are set out in express terms, either in the granting documents or as a matter of incorporation and legal construction of the terms of the relevant documents. “The extent of an easement created by a conveyance is fixed by the conveyance.” 5 Restatement of Property § 482 (American Law Institute 1944). In a leading treatise on the subject, the authors state the general rule to be “[wjhen precise language is employed to create an easement, such terminology governs the extent of usage.” Jon. W. Bruce and James W. Ely, Jr., The Law of Easements and Licenses in Land 1Í 8.02[1], at 8-3 (rev. ed. 1995).

The general rule does not preclude the scope of an easement being adjusted in the face of changing times to serve the original purpose, so long as the change is consistent with the terms of the original grant:

It is often said that the parties are to be presumed to have contemplated such a scope for the created easement as would reasonably serve the purposes of the grant____ This presumption often allows an expansion of use of the easement, but does not permit a change in use not reasonably foreseeable at the time of establishment of the easement.

Richard R. Powell, 3 Powell on Real Property § 34.12[2] (Patrick J. Rohan ed., 1996).

Applying this test, courts have held that an easement for water flow to a fulling-mill included the right to water flow to a later-established corn-mill which replaced the earlier mill, Luttrel’s Case, 4 Rep. 86 (1601); and that an easement for a vehicular way, granted at a time when horse and wagon was a common means of transport, would permit use of motor vehicles instead when the latter became common, see Matteodo v. Capaldi, 48 R.I. 312, 138 A. 38 (1927); Diocese of Trenton v. Toman, 74 N.J.Eq. 702, 70 A. 606 (1908).

Bernards v. Link, 199 Or. 579, 248 P.2d 341 (1952), is a good example of the application of the test. The question was whether an easement for a logging railroad, granted to defendant’s predecessor, would permit the substitution of a logging road for trucks, when the logging industry had moved to the use of such vehicles. The owners of the servient estate did not claim that the new use had subjected their property to any additional servitude, but that the new use constituted an abandonment of the original easement. The court reviewed the history of transportation in the logging industry, noting that the use of logging trucks and of logging roads had been an evolutionary development in the Northwest’s logging industry: “[i]mprove-ments in trucks and the inexorable demand for lower cost of operation have made the logging road the successor to the logging railroad in divers places.” Id. 248 P.2d at 346. The court stated that

[t]he evidence renders it clear that the paramount purpose of the parties was to enable the grantee to bring to Carlton, over the right of way described in the deed, the logs which were being produced near Tillamook Gate____ [W]e do not believe that the grantor intended to restrict the grantee to the specific type of equipment which was then in use.

Id. 248 P.2d at 351-52. The court concluded that the use of logging trucks, after logging railroads became obsolete, was within the proper scope of the easement.

When the easements here were granted to the Preseaults’ predecessors in title at the turn of the century, specifically for transportation of goods and persons via railroad, could it be said that the parties contemplated that a century later the easements would be used for recreational hiking and biking trails, or that it was necessary to so construe them in order to give the grantee railroad that for which it bargained? We think not. Although a public recreational trail could be described as a roadway for the transportation of persons, the nature of the usage is clearly different. In the one case, the grantee is a commercial enterprise using the easement in its business, the transport of goods and people for compensation. In the other, the easement belongs to the public, and is open for use for recreational purposes, which happens to involve people engaged in exercise or recreation on foot or on bicycles. It is difficult to imagine that either party to the original transfers had anything remotely in mind that would resemble a public recreational trail.

Furthermore, there are differences in the degree and nature of the burden imposed on the servient estate. It is one thing to have occasional railroad trains crossing one’s land. Noisy though they may be, they are limited in location, in number, and in frequency of occurrence. Particularly is this so on a relatively remote spur. When used for public recreational purposes, however, in a region that is environmentally attractive, the burden imposed by the use of the easement is at the whim of many individuals, and, as the record attests, has been impossible to contain in numbers or to keep strictly within the parameters of the easement. As the Bruce & Ely treatise noted, “[a]n easement created to serve a particular purpose ends when the underlying purpose no longer exists,” Bruce & Ely, supra, H 10.03[1], at 10-12, and “when an easement for railway purposes is found, it is generally considered to end when it is no longer used for the stated purposes,” id. H 1.06[2][d], at 1-48. In the language of the old English courts, to allow this change would permit “a substantial variance in the mode of or extent of user or enjoyment of the easement-so as to throw a greater burden on the servient tenement.” Bernards v. Link, 248 P.2d at 347.

Most state courts that have been faced with the question of whether conversion to a nature trail falls within the scope of an original railroad easement have held that it does not. Lawson v. State, 107 Wash.2d 444, 730 P.2d 1308 (1986) (in banc), is an example of a case practically, on all fours with the case before us. The Burlington Northern Railroad Company petitioned the ICC for permission to discontinue rail service over a certain right-of-way. King County requested the ICC to determine that the right-of-way was suitable as a public recreational trail, and to require that it be offered for sale for public purposes. The ICC did so under its Rails-To-Trails authority, and King County acquired the right-of-way from the Railroad.

The property owners who owned the underlying fee estates sued in Washington State court for a declaratory judgment that this was an unlawful taking without just compensation. The trial court held for the County. The Washington Supreme Court, in banc, reversed. The Court stated the common law rule to be that when a deed conveys a right-of-way for railroad purposes only, upon abandonment by the railroad of the right-of-way the land over which the right-of-way passes “reverts” to the reversionary interest holder (the owner of the fee estate) free of the easement.

The court then stated:

In addition to outright abandonment of a right of way, there may be a change in use of the right of way which is inconsistent with the purpose for which the right of way was granted. Where the particular use of an easement for the purpose for which it was established ceases, the land is discharged of the burden of the easement and right to possession reverts to the original land owner or to that landowner’s successor in interest.

Id. 730 P.2d at 1312. The court went on to hold that a hiking and biking trail is not encompassed within a grant of an easement for railroad purposes, citing cases from Illinois and Wisconsin, and concluded that “[a]p-plying common law principles, we hold that a change in use from ‘rails to trails’ constitutes abandonment of an easement which was granted for railroad purposes only. At common law, therefore, the right of way would automatically revert to the reversionary interest holders.” Id. 730 P.2d at 1313.¹⁷ The court went on to hold that a state statute which purported to prevent the ripening of the reversionary interest upon abandonment was unconstitutional as applied to the vested property rights of the plaintiffs “insofar as it purports to authorize King County to acquire without payment of just compensation existing reversionary interests which follow easements for railroad purposes only.” Id., 730 P.2d at 1316.

The Court thus concluded that “King County cannot acquire the [] right of way from Burlington Northern without payment of just compensation to the reversionary interest holders. If the County takes this right of way and commences to build a recreation trail, it does so in violation of the constitution.” Id. Accord Schnabel v. County of DuPage, 101 Ill.App.3d 553, 57 Ill.Dec. 121, 428 N.E.2d 671 (1981); Pollnow v. State Dep’t of Natural Resources, 88 Wis.2d 350, 276 N.W.2d 738 (1979); see also National Wildlife Fed’n v. ICC, 850 F.2d 694 (D.C.Cir. 1988) (rejecting ICC argument that rails-to-trails conversions will never constitute a taking, and remanding for further consideration especially regarding easements limited to railroad use and when railroad restoration “not foreseeable”).

A few courts, under the particular terms of an easement or in light of a special statute, have held otherwise. In Washington Wildlife Preservation, Inc. v. State, 329 N.W.2d 543 (Minn.1983), plaintiffs were a group of property owners representing interests wishing to protect wildlife and other natural resources from the adverse impacts inherent in a public recreational trail. A nine mile long strip of land had been acquired in 1884 and 1885 by the original grantee railroad from a number of property owners. Thirteen or more deeds were involved. In 1980 the successor railroad conveyed the land to the State for a recreational trail. There were a number of issues in the case, including what was the estate conveyed in each of the deeds, the exact scope of those grants that were easements, and whether public recreational trails were consistent with the scope of an easement for use by a railroad. The court with little analysis declared that use of such a right-of-way for a recreational trail is consistent with the purpose for which the easements were originally acquired, public travel, and that such use imposes no additional burden on the servient estates. The court specifically pointed out that “[wjhile the grantors were undoubtedly aware that a railroad would be constructed on the land, none of the deeds limit the use to railroad purposes.” Id. at 546. Furthermore, said the court, even though abandoned for railroad purposes, the easements were not abandoned for public travel purposes, including travel by hikers, bikers, cross-country skiers, and horseback riders. See also Rieger v. Penn Central Corp., No. 85-CA-11, 1985 WL 7919 (Ohio.Ct.App. May 21,1985) (general purpose of trail, public travel, is within scope of prescriptive railroad easement). Cf. Barney v. Burlington Northern R.R., 490 N.W.2d 726 (S.D.1992) (noting that use for recreational trail of railroad easement granted by federal statute comes within definition of “public highway,” thereby precluding abandonment under 43 U.S.C. § 912). For reasons peculiar to the particular circumstances, these few cases depart from the well established common law rules governing easements, and carry little persuasive authority.

Given that the easements in this case are limited by their terms and as a matter of law to railroad purposes, we are unable to join the dissent’s effort to read into Vermont law a breadth of scope for the easements that is well outside the parameters of traditional common law understanding. The concept of “shifting public use” must be anchored in established precedent, or it becomes little more than speculation about what a hypothetical Vermont court in 1996 might do. Our responsibility here is to apply established law, not to make new law. If a dramatic reinterpretation of the scope of the established terms by which railroad easements were historically granted is to be imposed upon Vermont and the parties to this case, it should not be at the hand of a federal appellate court.

E. Abandonment

Even assuming for sake of argument that the Government and the State are correct and that the so-called “doctrine of shifting public use” is available to permit reading the original conveyances in the manner for which they argue, there remains yet a further obstacle to the Government’s successful defense. The Preseaults contend that under Vermont law the original easements were abandoned, and thus extinguished, in 1975. If that is so, the State could not, over ten years later in 1986, have re-established the easement even for the narrow purposes provided in the original conveyances without payment of the just compensation required by the Constitution. See, e.g., Loretto, 458 U.S. at 441, 102 S.Ct. at 3179. It follows that if the State could not in 1986 use the parcels for railroad purposes without that use constituting a taking, then it surely could not claim the right to use the property for other purposes free of Constitutional requirements. See Preseault 1, 24 Cl.Ct. at 835 (concluding that a “shifting public use” doctrine could not apply because of discontinuity of use of the easement by State between 1975 and 1985).

We have established that the effect of the turn-of-the-century transfers regarding Parcels A, B, and C was to create in the transferee Railroad an easement carrying the right to exclusive possession of the surface of the strips of land described in the conveyances for the limited purposes of railroad use, and to leave in the original owners of the property their fee simple estate, subject to the easement. An easement is not a possessory estate of freehold, but merely gives the easement holder a right to make use of the land over which the easement lies for the purposes for which it was granted. See 7 Thompson On Real Property § 60.02(c), (d) (David A. Thomas ed., 1994).

Typically the grant under which such rights-of-way are created does not specify a termination date. The usual way in which such an easement ends is by abandonment, which causes the easement to be extinguished by operation of law. See generally Restatement of Property § 504. Upon an act of abandonment, the then owner of the fee estate, the “burdened” estate, is relieved of the burden of the easement. In most jurisdictions, including Vermont, this happens automatically when abandonment of the easement occurs. Dessureau, 132 Vt. at 351, 318 A.2d at 653; see Preseault 1, 24 Cl.Ct. at 831, 835-36; State v. Preseault, No. S474-87 CnC, slip op. at 5, 7 (Chittenden Super. Ct. Feb. 7, 1992), aff'd on reconsideration (Chittenden Super. Ct. July 15, 1992).

Vermont law recognizes the well-established proposition that easements, like other property interests, are not extinguished by simple non-use. As was said in Nelson v. Bacon, 113 Vt. 161, 32 A.2d 140, 146 (1943), “[o]ne who acquires title to an easement in this manner [by deed in that case] has the same right of property therein as an owner of the fee and it is not necessary that he should make use of his right in order to maintain his title.” Thus in cases involving a passageway through an adjoining building (Nelson), or a shared driveway (Sabins v. McAllister, 116 Vt. 302, 76 A.2d 106 (1950), overruled in part on other grounds by Lague v. Royea, 152 Vt. 499, 568 A.2d 357 (1989)), the claimed easement was not extinguished merely because the owner had not made use of it regularly.

Something more is needed. The Vermont Supreme Court in Nelson summarized the rule in this way: “In order to establish an abandonment there must be in addition to nonuser, acts by the owner of the dominant tenement conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its future existence.” Nelson, 32 A.2d at 146 (emphasis added); see also Lague, 152 Vt. at 503, 568 A.2d at 359; Barrett v. Kunz, 158 Vt. 15, 604 A.2d 1278 (1992). The record here establishes that these easements, along with the other assets of the railroad, came into the hands of the State of Vermont in the 1960s. The State then leased them to an entity called the Vermont Railway, which operated trains over them. In 1970, the Vermont Railway ceased active transport operations on the line which included the right-of-way over the parcels at issue, and used the line only to store railroad cars. In 1975 the Railroad removed all of the railroad equipment, including switches and tracks, from the portion of the right-of-way running over the three parcels of land now owned by the Preseaults. See 24 Cl.Ct. at 822. In light of these facts, the trial court concluded that under Vermont law this amounted to an abandonment of the easements, and adjudged that the easements were extinguished as a matter of law in 1975.

Again, as was the case with determining the nature of the title conveyed by the Man-well deed, we are compelled to rule on the consequences of a state of facts occurring some years ago, based on the law of Vermont, law that must be extracted from cases none of which are directly on point. Under Vermont law, “the question whether there has been an abandonment ... is one of fact,” Logue, 152 Vt. at 503, 568 A.2d at 359 (citation omitted), and “[t]he fact that the question relates to a right of way taken by a railroad company does not make it one of law,” Stevens v. MacRae, 97 Vt. 76, 122 A, 892 (1923).

The underlying facts regarding this question are undisputed. As noted, Vermont denominates the question of abandonment as one of fact. The parties are in dispute over whether an abandonment occurred. Does this preclude summary judgment? We think not. Abandonment, though a fact question under Vermont law, is a factual conclusion based on inferences to be drawn from the undisputed evidence regarding the historical events. Nothing would be gained by requiring a further proceeding at the trial level, since the parties had full opportunity to establish all relevant underlying facts. Trial would not enhance the court’s ability to draw factual inferences and conclusions. Nor, since this is a nonjury matter, does permitting the trial judge to rule on summary judgment have the effect of denying a party the right to have the issue decided by jury.

In light of the facts before her and the arguments presented by the parties, the trial judge arrived at the conclusion that the facts meet the test of Vermont law, in that they manifest, conclusively and unequivocally, the requisite intent or purpose of the Railroad to abandon the easement in 1975. Although the trial judge held several evidentiary hearings, and in her two opinions in the case discussed the facts extensively, in response to the motions before her she denominated her decision a summary judgment, rather than a decision on the merits following trial. Our task, then, given an extensive factual record, is to review on appeal of a summary judgment a disputed factual conclusion reached by the trial court.

Obviously, if there is a genuine dispute over a material evidentiary fact, summary judgment is precluded. If the disputed factual issue is one of ultimate fact, calling for a factual conclusion, and on appeal summary judgment is deemed appropriate as is the case here, the question arises as to how much deference should be accorded the trial judge’s conclusion. The Supreme Court in its leading case on summary judgment, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), did not directly address the question. In other Circuits the question remains to be decided. The Fifth Circuit recently reviewed its cases on the question, without resolving whether such a conclusion is reviewable for clear error under Rule 52, Fed.R.Civ.P. See United States Fidelity & Guaranty Co. v. Planters Bank & Trust Co., 77 F.3d 863, 865 (5th Cir.1996). No case in this court has resolved the question. Cf. Loglan Inst., Inc. v. Logical Language Group, Inc., 962 F.2d 1038, 1040 (Fed.Cir.1992) (summary judgment affirmed); Amhil Enterprises Ltd. v. Wawa, Inc., 81 F.Sd 1554, 1562 (Fed.Cir. 1996) (summary judgment of no literal infringement affirmed under the clearly erroneous standard of review); Lemelson v. TRW, Inc., 760 F.2d 1254 (Fed.Cir.1985) (summary judgment found inappropriate and case remanded for trial).

We need not determine this issue for all time and for all cases. The question to be decided here is what was the intent or purpose of the Railroad in 1975, when, for all practical purposes, it ended railroad operations on this easement. It is enough, under the circumstances of this case and given the fullness of the factual record before the trial judge, as well as her carefully-considered analysis, that we here accord her traditional deference for factual determinations, and test her judgment against the usual standard of clear error. To do less would embroil this court in determining factual matters more intensively than customary for appellate courts, a position for which appellate courts are ill-equipped.¹⁸

As noted, in 1970 the Vermont Railway ceased using the easement for active transport operations and used the tracks solely to store railroad cars, as the only freight customer serviced on that portion of the line had moved from the area. In 1975, Vermont Railway removed the rails and other track materials from the segment of line crossing the Preseaults’ property.

In the 1985 proceedings before the ICC, the State of Vermont and Vermont Railway filed a Verified Notice of Exemption (Corrected) dated December 16, 1985, in which they stated that

no local traffic has moved over the line for at least two years and any overhead traffic on the line can be rerouted over other lines and that no formal complaint filed by a user of rail service on the line (or a State or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Commission or any U.S. District Court or had been decided in favor of the complainant within the two-year period.

Preseault 1, 24 Cl.Ct. at 823. The State sought approval from the ICC for a 30-year lease with the City of Burlington, indicating that the State fully recognized that railroad operations had ceased on the easement, and that none were contemplated in the foreseeable future. Although events occurring after 1975 cannot change the consequences of the facts then in place, these later declarations confirm the conclusion that the purpose of the Railroad’s actions leading up to the track removal in 1975 was to abandon this stretch of rail line.

The Government and the State argue that there are facts inconsistent with that determination, but we are not persuaded that any of them significantly undercut the trial court’s conclusion. For example, when the Vermont Railway removed its tracks in 1975, it did not remove the two bridges or any of the culverts on the line, all of which remained “substantially intact.” That is not surprising. The Railroad was under no obligation to restore the former easement to its original condition. Tearing out existing structures would simply add to its costs, whereas the rails that were taken up could be used for repairs of defective rails elsewhere on the line. It is further argued that, since the rail line continues to operate to a point approximately one and one-third miles south of the Preseaults’ property, it is possible to restore the line to full operation. The fact that restoration of the northern portion of the line would be technically feasible tells us little. The question is not what is technically possible to do in the future, but what was done in the past.

Almost immediately after the tracks were removed, members of the public began crossing over the easement. Perhaps illustrating the difficulty in getting government paperwork to catch up with reality, or perhaps indicating that revenue collectors do not give up easily, the State of Vermont and Vermont Railway, as they had done before the removal of the tracks, continued to collect fees under various license and crossing agreements from persons wishing to establish fixed crossings. In January 1976, the Pre-seaults executed a crossing agreement with the Vermont Railway which gave the Pre-seaults permission to cross the right-of-way. In March 1976, the Preseaults entered into a license agreement with the State and the Vermont Railway to locate a driveway and underground utility service across the railroad right-of-way. As late as 1991, 985 Associates (through Paul Preseault) paid a $10 license fee to “Vermont Railroad” (sic), presumably pursuant to one of the 1976 agreements. The Preseaults paid “under protest.” Much of this activity suggests that, initially at least, the adjacent property owners decided it was cheaper to pay a nominal license fee to the State than to litigate the question of whether the State had the right to extract the fee.¹⁹ In view of all the contrary evidence of physical abandonment, we find this behavior by the State’s revenue collectors unconvincing as persuasive evidence of a purpose or intent not to abandon the use of the right-of-way for actual railroad purposes.

One uncontrovertible piece of evidence in favor of abandonment is that, in the years following the shutting down of the line in 1970 and the 1975 removal of the tracks, no move has been made by the State or by the Railroad to reinstitute service over the line, or to undertake replacement of the removed tracks and other infrastructure necessary to return the line to service. The declarations in the 1985 lease between the State of Vermont, Vermont Railway, and the City of Burlington, which refer to the possible resumption of railroad operations at some undefined time in the future are of course self-serving and not indicative of the facts and circumstances in 1975. Other events occurring after 1975 are also of little probative value.²⁰

As noted, there are no Vermont cases addressing directly the state of facts presented here. Several cases did deal with railroad rights-of-way and the question of whether there had been an abandonment. In Stevens v. MacRae, 97 Vt. 76, 122 A. 892 (1923), the issue was the location on the defendant’s farm, acquired from the original grantor, of the plaintiffs right-of-way for ingress and egress. That right-of-way had been granted earlier with relation to a piece of the farmland sold to plaintiff. The deed to the plaintiff stated that the right-of-way was on the grantor’s “other lands.” There was also a railroad easement running through the farm. Since the ingress easement under the terms of plaintiffs deed was to be on the grantor’s “other lands,” the court stated that that part of the property over which the railroad easement ran, and was still owned by the railroad, would not be considered part of those “other lands.” It had been some years since the railroad easement had been used by the railroad, but, consistent with the general rule, the court stated that mere non-user did not terminate the railroad’s rights, and in absence of a factual finding of abandonment, the court could not say that the railroad right-of-way was part of the grantor’s “other lands.”

In Stagey v. Vermont Central Railroad., 27 Vt. 39 (1854), the question was whether the railroad owed the landowner the value of the right-of-way the railroad initially surveyed over his land, but then decided not to use in favor of a different alignment over nearby land. The court held that

[t]hat change in the line of their road, however, will operate as an abandonment of their former survey on the plaintiffs land, so that the company can no longer claim any right or interest in the land itself, or to any easement growing out of it, in consequence of that survey having been made.

Id. at 43. As a result, the railroad was not liable.

Perhaps the closest case to the matter before us is the relatively recent ease of Proctor v. Central Vermont Public Service Corp., 116 Vt. 431, 77 A.2d 828 (1951). In that case, the landowner brought an action in trespass against the electric company for, inter alia, maintaining its wires and poles over plaintiffs land without legal authority. The electric company had placed them along an old right-of-way belonging to a railroad, and claimed that it thus was entitled to use the right-of-way for electric distribution purposes. One question, then, was whether the right-of-way had been abandoned. The court addressed this issue by

paus[ing] but briefly over the matter of abandonment. Removal of the tracks twenty-three years before this suit was brought, absence of tracks since their removal, and nonuse for railroad purposes for twenty-five consecutive years is conclusive that the premises were abandoned for railroad uses not later than the time that the tracks were removed. Much citation of authority would be superfluous----

Id., 77 A.2d at 830. Proctor makes clear that it is no more difficult for a railroad to abandon an easement than any other owner of one. It is simply a question of determining whether, on the facts, there was sufficient evidence of either an intent to relinquish the easement or of a purpose inconsistent with its future existence. Nelson, 32 A.2d at 146. (The court ultimately held that since Vermont statutes expressly provided for electric transmission as part of a railroad right-of-way, the original compensation paid the landowner’s predecessors in title included that indemnification, and the landowner had no cause of action.)

The trial judge in this case, after extensive recitation of the undisputed facts, and after reviewing cases such as Proctor, concluded that as a fact the Railroad had effected in 1975 an abandonment of the easement running over parcels A, B, and C. Even without giving the trial judge the deference due her, our review of the facts and circumstances leading up to the events of 1975 persuades us that the trial judge is correct. When we accord the trial judge due deference with regard to this factual determination, there is hardly a basis for finding clearly erroneous her conclusion that an abandonment of the easements occurred. The dissent chooses to de-emphasize the important facts that the trial judge, and we, find controlling, and to emphasize other, less important, facts. We find the dissent’s argument as well crafted as the argument can be made, but nevertheless unpersuasive. Furthermore, contrary to where the dissent places its emphasis, we find the question of abandonment is not the defining issue, since whether abandoned or not the Government’s use of the property for a public trail constitutes a new, unauthorized, use. We affirm the determination of the trial court that abandonment of the easements took place in 1975. That determination provides an alternative ground for concluding that a governmental taking occurred.

E. THE TAKING

The Preseaults had acquired Parcel C, the Manwell Parcel, in 1966. At that time it was still subject to the railroad’s easement. In 1975, following the abandonment by the railroad of the easement across Parcel C, the Preseaults owned Parcel C in fee simple free of the encumbering easement. The Pre-seaults acquired Parcels A and B in 1980. At that time the easement had been extinguished for five years; the parcels they purchased were in fee simple, again free of the encumbrance.

Ten years later, in June 1985, the State of Vermont Agency of Transportation, joined by the Vermont Railway, as lessors, and the City of Burlington as lessee, entered into a lease by which the lessors purported to lease the former right-of-way over Parcels A, B, and C to the City of Burlington for use as a bicycle and pedestrian path. A month later the Preseaults and several neighbors filed a petition with the ICC (now the Surface Transportation Board²¹) for a determination of exemption from the jurisdiction of the ICC and for a certification of abandonment of the rail line. (The Vermont Railway had never sought ICC approval before abandoning operations on the line.) The State of Vermont intervened in the ICC proceeding, and petitioned the ICC to permit Vermont Railway to discontinue rail service and to transfer the right-of-way to the City of Burlington for use as a public trail. The authority for such action was section 8(d) of the National Trails System Act, 16 U.S.C. § 1247(d), an act establishing a nationwide system of nature and recreational trails.

To comply with the ICC’s procedural requirements, the State and Vermont Railway formally acknowledged that the line was no longer used by the railroad, and that there had been no formal complaint by users regarding the cessation of service. The ICC in a January 1986 Order authorized Vermont Railway ex post facto to discontinue service, and approved the agreement between the State and the City of Burlington for trail use of the former right-of-way. Subsequently, the ICC denied the Preseaults’ reconsideration motion, acknowledging that trail use “will conflict with the reversionary rights of adjacent land owners, [and noting that this] is the very purpose of the Trails Act.” Vermont & Vermont Ry. — Discontinuance of Service Exemption — In Chittenden County, Vt, 3 I.C.C.2d 903, 908 (1987).

In due course an eight foot wide paved strip was established on the former right-of-way over Parcels A, B, and C. The path is some 60 feet from the Preseaults’ front door. On each side of the Preseaults’ driveway, where it crosses the easement, two concrete posts and one metal post were installed to block automobile traffic. The city also erected two stop signs on the path and built a water main under and along the path. The Preseaults have been unable to build on the land under the easement.or to construct a driveway connecting their land through Parcels A and B to the nearest public street.

The path is used regularly by members of the public for walking, skating, and bicycle riding. On warm weekends up to two hundred people an hour go through the Pre-seaults’ property. People using the path often trespass on the Preseaults’ front yard. On one occasion Mr. Preseault was nearly run over by a cyclist as he walked across the path.

In her concurring opinion in Preseault II, Justice O’Connor made the point that:

[t]he scope of the Commission’s authority to regulate abandonments, thereby delimiting the ambit of federal power, is an issue quite distinct from whether the Commission’s exercise of power over matters within its jurisdiction effected a taking of petitioner’s property.... The Commission’s actions may delay property owners’ enjoyment of their reversionary interests, but that delay burdens and defeats the property interest rather than suspends or defers the vesting of those property rights. Any other conclusion would convert the ICC’s power to pre-empt conflicting state regulation of interstate commerce into the power to pre-empt the rights guaranteed by state property law, a result incompatible with the Fifth amendment.

Preseault II, 494 U.S. at 22,110 S.Ct. at 927 (O’Connor, J., concurring) (citations omitted).

Thus, if the Preseaults have interests under state property law that have traditionally been recognized and protected from governmental expropriation, and if, over their objection, the Government chooses to occupy or otherwise acquire those interests, the Fifth Amendment compels compensation. The record establishes two bases on which the Preseaults are entitled to recover. One, if the easements were in existence in 1986 when, pursuant to ICC Order, the City of Burlington established the public recreational trail, its establishment could not be justified under the terms and within the scope of the existing easements for railroad purposes. The taking of possession of the lands owned by the Preseaults for use as a public trail was in effect a taking of a new easement for that new use, for which the landowners are entitled to compensation. As discussed previously, some courts consider that the establishment of a use outside the scope of an existing easement has the effect of causing an abandonment, and thus termination, of the existing easement. See, e.g., Lawson v. State, 107 Wash.2d 444, 730 P.2d 1308 (1986). Either way, the result is the same — a new easement for the new use, constituting a physical taking of the right of exclusive possession that belonged to the Preseaults.

Two, as an alternative basis, in 1986 when the ICC issued its Order authorizing the City to establish a public recreational biking and pedestrian trail on Parcels A, B, and C, there was as a matter of state law no railroad easement in existence on those parcels, nor had there been for more than ten years. The easement had been abandoned in 1975, and the properties were held by the Pre-seaults in fee simple, unencumbered by any former property rights of the Railroad. When the City, pursuant to federal authorization, took possession of Parcels A, B, and C and opened them to public use, that was a physical taking of the right of exclusive possession that belonged to the Preseaults as an incident of their ownership of the land.

The Government argues that, since it was the City that actually established the trail, the United States should not be considered the responsible actor. If a taking occurred, says the Government, it was the City and the State who did it. In Hendler v. United, States, 952 F.2d 1364 (Fed.Cir.1991), the U.S. Environmental Protection Agency issued an Order which, among other things, authorized and directed the State of California to enter upon the land of the Hendlers, disregarding their objections, and establish monitoring wells. The State did so. In response to the Hendlers’ takings claim against the United States, the Government argued, inter alia, that it could not be held responsible for what California did since the state could have entered under its own authority, and did not need the EPA Order.

We rejected the argument. We pointed out that pursuant to the Government’s Order California entered on the property and dug and serviced deep wells. When California acted pursuant to the Order, it acted under the aegis of the United States, and its actions were, for purposes of takings liability, the actions of the United States. That it could have acted on its own was immaterial.

In the case before us there was a similar physical entry upon the private lands of the Preseaults, acting under the Federal Government’s authority pursuant to the ICC’s Order. That it was for a valued public use is not the issue. We have here a straightforward taking of private property for a public use for which just compensation must be paid.

As previously noted, when the Preseaults and other affected landowners first sued in the Vermont state courts for a determination of ownership rights as between themselves and the Railroad (then owned by the State), the Vermont Supreme Court held that it was without subject matter jurisdiction since the matter was exclusively one within federal control. Trustees of the Diocese of Vermont v. State, 145 Vt. 510, 496 A.2d 151 (1985). In the subsequent litigation against the Federal Government, the Federal Government never denied its role, and indeed, as was previously explained, in arguing the case before us staked its position on the grounds of total federal control over railroads and railroad rights-of-way. Both the State and the Federal Governments were fully invested in the effort to create this public trail. It would be absurd to deny the Preseaults their Constitutional rights on the grounds that the State has concluded it was the Federal Government who did it, and the Federal Government has concluded it was the State. In sum, the Government cannot now point its finger at the State and say “they did it, not us.” As in Hendler, when the Federal Government puts into play a series of events which result in a taking of private property, the fact that the Government acts through a state agent does not absolve it from the responsibility, and the consequences, of its actions.

A final argument made by defendants is based on a 1982 state statute which authorizes, indeed instructs, the State to retain any unused railroad rights-of-way it owns for future transportation uses, and in the meantime to use them for other public purposes not inconsistent with future transportation purposes.²² That is what the State purports to have done, and presumably would have done with or without the statute. Defendants argue that the statute makes the action proper.

One can hardly fault the State government for complying with its law. However, the statute does not say that such actions are without consequences to the property owners, nor does it say that the property owners will not, or must not, be compensated for such actions. The statute is in fact wholly silent on the question of compensation. Obviously the State could not simply by enactment of a statute immunize itself from the salutary provisions of the Fifth Amendment.²³ The issue is not whether the State or Federal governments had the power or obligation to do what they did, but whether the Constitution requires that just compensation be paid as a consequence. The existence of the statute thus adds nothing to the Government’s defense.²⁴

SUMMARY AND CONCLUSION

It is important to understand what we here decide, and what remains to be dealt with in future eases. The plenary regulatory authority that the Federal Government exercises over the activities, such as cessation of service on a particular rail line, of interstate rail carriers under the Government’s Constitutional powers pursuant to the Commerce Clause, U.S. Const., art. I, § 8, is not here challenged. But the exercise of that authority does not dispose of the question of the compensability of state-defined rights of private citizens who own land subject to an easement for railroad use. When state-defined property rights are destroyed by the Federal Government’s preemptive power in circumstances such as those here before us, the owner of those rights is due just compensation.

We do not hold that every exercise of authority by the Government under the Rails-to-Trails Act necessarily will result in a compensable taking. Obviously if the railroad owns the right-of-way in fee simple, there is no owner of a separate underlying property interest to claim the rights of the servient estate holder. And even if an easement rather than fee title is the nature of the property interest held by the railroad at the time of the conversion to a public trail, if the terms of the easement when first granted are broad énough under then-existing state law to encompass trail use, the servient estate holder would not be in a position to complain about the use of the easement for a permitted purpose.

Whether, at the time a railroad applies to abandon its use of an easement limited to railroad purposes, a taking occurs under an ICC order to “railbank” the easement for possible future railroad use, and allowing in the interim for use of the easement for trail purposes, is a question not now before us. We offer no opinion at this time on that question.²⁵ We conclude that the occupation of the Preseaults’ property by the City of Burlington under the authority of the Federal Government constituted a taking of their property for which the Constitution requires that just compensation be paid. Neither the Government nor the State of Vermont have demonstrated a valid reason why the Pre-seaults are not entitled to what the Constitution mandates. The judgment of the Court of Federal Claims, holding the Government not liable, is reversed. The matter is remanded to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

1 . U.S. Const, amend. V ("nor shall private property be taken for public use, without just compensation").

2 . The Rails-to-Trails Act was enacted on March 28, 1983, as part of the National Trails System Act Amendments of 1983. Pub.L. No. 98-11, Title II, 97 Stat. 42, 48 (codified at 16 U.S.C. § 1247(d) (1994)). The amendments are part of the National Trails System Act, which was first enacted on October 2, 1968. Pub.L. No. 90-543, 82 Stat. 919 (codified as amended at 16 U.S.C. §§ 1241-51 (1994)).

3 . The plaintiff-appellants are the Preseaults individually and as partners of 985 Associates, Ltd., a Vermont limited partnership, and 985 Associates, Ltd. There were various transfers of the property interests involved during the time the Pre-seaults had an interest in them, but ultimately the Preseaults became the only real parties in interest. For purposes of this appeal we refer to the plaintiffs collectively as the "Preseaults.”

4 . The court had the benefit of amici curiae briefs from the Rails-To-Trails Conservancy, the National Trust for Historic Preservation, and the American Planning Association; M.L. and D.J. Glosemeyer/Mountain States Legal Foundation; the National Audubon Society; as well as extensive briefing by plaintiffs-appellants, the Pre-seaults, defendant-appellee the United States, and defendanl/cross-appellant, the State of Vermont.

5 . We shall follow the convention of numbering in chronological order the various federal court opinions sharing the Preseault name, the appellate court cases with Roman numerals, the trial court cases with Arabic numerals.

6 . It is unclear why, pursuant to a motion for summaty judgment, judgment of dismissal of the complaint was ordered, rather than simply judgment for the Government, but we treat the judgment as one on the merits in favor of the defendant United States.

7 . A similar map appears in 24 Cl.Ct. at 820, although the later version is believed to be a more accurate representation of the situation. See 27 Fed.Cl. at 71 n. 3.

8 . At common law, only the estate in fee simple, the estate tail (earlier, the estate in fee simple conditional), and the estate for life were deemed freehold estates, created by feoffment with livery of seisin.

9 . See, e.g., 7 Thompson On Real Property § 60.02(c), (d) (David A. Thomas ed., 1994).

10 . Accord Bernards v. Link, 199 Or. 579, 248 P.2d 341 (1952) (holding that a deed purporting to convey a strip of land for use as a railroad right-of-way conveyed an easement, not a fee).

11 . Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 159-60, 67 L.Ed. 322 (1922) (‘‘[I]f regulation goes too far it will be recognized as a taking.").

12 . The argument was renewed before the in banc court in one of the amicus briefs, submitted on behalf of the Government’s position. See Supplemental Brief of Amicus Curiae National Audubon Society.

13 . The State further argues that certain state statutes, enacted in 1963 and 1982, “superseded any reasonable expectation that devolution of the right-of-way under Vermont law would be governed solely by common law principles.” (The 1963 Act dealt with appropriations for acquisition of certain rights-of-way; the 1982 Act contained language to the effect that, when railroad operations cease on railroad rights-of-way owned by the State, the state is authorized to retain title to its right-of-way for future general transportation purposes.) This argument again confuses the “reasonable expectation” analysis of regulatory takings law with the question of the properly interests of the parties. Since those interests were fixed at the time of their creation, the later statutes if applied to divest those interests would constitute a separate ground for finding a governmental taking. Accord Lawson v. State, 107 Wash.2d 444, 730 P.2d 1308 (1986) (in banc), holding similar state statute unconstitutional as applied to fee estate holders.

14 . In Preseault 1, 24 Cl.Ct. 818, 832-33, the trial court noted two railroad treatises for their discussion of the scope of railroad easements: Edward L. Pierce, A Treatise on the Law of Railroads (1881); and Isaac F. Redfield, The Law of Railways (6th ed. 1888). Neither of these treatises keys specifically to Vermont law, and neither uses the term "shifting public use,” or indicates if the doctrine is any more broad than the holding in the Brainard case, discussed infra.

15 . See also West v. Bancroft, 32 Vt. 367 (1859) (public highway easement held to permit public use of the easement for water supply services).

16 . Cf. In re Mattison, 120 Vt. 459, 144 A.2d 778 (1958) (holding that selectmen of a town did not have legal authority to convert a public roadway into a hiking trail). But see Whitcomb v. Town of Springfield, 123 Vt. 395, 189 A.2d 550 (1963).

17 . See, 3 J. Sackman, Nichols on Eminent Domain § 9.35, at 9-113 (3d rev. ed. 1985).

18 . In Lague, the Vermont Supreme Court remanded the question of whether there had been an abandonment of two rights-of-way for ingress and egress to the trial court for application of the correct factual standard as enunciated in Nelson. 152 Vt. at 503, 568 A.2d at 359.

19 . [P]roperty owners adversely affected by regulation may choose not to resist regulatory restrictions in court. This will occur quite often whenever the cost of such a challenge exceeds the benefits of using the property ffee-ly____ The cumulative effect of individual decisions by property owners not to resist overregulation will be a suboptimal supply of the external benefits associated with the exercise of property rights. Jan G. Laitos, Causation and the Unconstitutional Conditions Doctrine, 72 Denv. U.L.Rev. 893, 901 (1995).

20 . Since the 1950s, Rutland Railway and later the Vermont Railway have licensed the Burlington Electric Light Department, a municipal utility, to install and maintain electrical transmission and distribution lines within the right-of-way. The City of Burlington installed a water line on the property under an agreement with the Vermont Railway. The Government says this occurred in 1974, but the Preseaults say it was in 1976.

21 . ICC Termination Act of 1995, Pub.L. No. 104-88, 109 Stat. 803 ('TCCTA”). The ICCTA recodi-fied the ICC’s responsibilities concerning aban-donments and discontinuances and transferred those responsibilities to the newly created Surface Transportation Board, with a savings clause fer suits initiated before December 29, 1995. See ICCTA §§ 102(a), 204(c)(2), 109 Stat. 822-29, 942. Because all events relevant here preceded the enactment of the ICCTA, this opinion refers to the ICC and to the pre-1995 version of its discontinuance and abandonment authorities.

22 . 1982 Vt. Acts No. 187.

23 . See Lawson v. State, 107 Wash.2d 444, 730 P.2d 1308 (1986) (in banc), holding similar state statute unconstitutional as applied to fee estate holders.

24 . The statute, purporting to be retroactive, was passed several years after the Preseaults had acquired the properly interests involved, and several years before the Vermont Supreme Court decided their state-based claim. That court made no mention of the statute as relevant to its decision.

25 . See Preseault II, 494 U.S. at 22, 110 S.Ct. at 927 (O’Connor, J., concurring) ("The Commission’s actions may delay property owners’ enjoyment of their reversionary interests, but that delay burdens and defeats the property interest rather than suspends or defers the vesting of those property rights.”).