This reportdiscusses the history of the federal railroad rights of way grants, the various forms such grants havetaken, and the provisions Congress has enacted to govern disposition of railroad rights of way. Thisreport will be updated as circumstances warrant. At times, railroads also acquired some rights through the exercise of state power of eminentdomain and through the exercise of federal power of eminent domain. In the latter instance, therailroad obviously could hold full title to the right of way lands and the federal government none. This report does not address privately-owned railroad rights of way but discusses railroadrights of way granted by the federal government, either as part of a land grant or under the 1875 rightof way statute. (11) However, the "rail banking" provisions of the Rails to Trails Act(discussed below) have again resulted in a focus on the exact nature of the right of way interest andthe authority of Congress over rail corridors. In 1875, Congress approved the general railroad right of way grant (GRRWA) using the samelanguage as in some of the land-grant rights of way grants: "The right of way through the publiclands of the United States is hereby granted to any railroad company ...." (17) The Supreme Court heldin Great Northern Railway Co. v. United States that this language clearly granted only a surfaceeasement rather than the strip of land right of way. (28) 
Despite the limitations on the alienability of federal rights of way, the railroads still purportedto convey, and adjacent landowners continued to encroach upon, rights of way and claim rightsthereto. Congressional Disposition of Underlying Federal Interests

Congress legislated specially to provide for the final disposition of particular rights of wayno longer being used for railroad purposes, and in 1922 also enacted a general statute. Theprovisions state:
Whenever public lands of the United States have beenor may be granted to any railroad company for use as a right of way for its railroad or as sites forrailroad structures of any kind, and use and occupancy of said lands for such purposes has ceasedor shall hereafter cease, whether by forfeiture or by abandonment by said railroad company declaredor decreed by a court of competent jurisdiction or by Act of Congress, then and thereupon all right,title, interest, and estate of the United States in said lands shall, except such part thereof as may beembraced in a public highway legally established within one year after the date of said decree orforfeiture or abandonment[,] be transferred to and vested in any person, firm, or corporation, assigns,or successors in title and interest to whom or to which title of the United States may have been ormay be granted, conveying or purporting to convey the whole of the legal subdivision or subdivisionstraversed or occupied by such railroad or railroad structures of any kind as aforesaid, except landswithin a municipality the title to which, upon forfeiture or abandonment, as herein provided, shallvest in such municipality, and this by virtue of the patent thereto and without the necessity of anyother or further conveyance or assurance of any kind or nature whatsoever: Provided , That thissection shall not affect conveyances made by any railroad company of portions of its right of wayif such conveyance be among those which have been or may after March 8, 1922, and before suchforfeiture or abandonment be validated and confirmed by any Act of Congress; nor shall this sectionaffect any public highway on said right of way on March 8, 1922: Provided further , That the transferof such lands shall be subject to and contain reservations in favor of the United States of all oil, gas,and other minerals in the land so transferred and conveyed, with the right to prospect for, mine andremove same. The importance of this question has beenhighlighted by recent cases involving the Rails to Trails litigation. The Preseault cases involved private fee-title landowners whose predecessorshad sold an easement for railroad purposes to a railroad. This case again did not take into account the years ofenactments by Congress premised upon some retained interest or authority over the rights of way,nor the language of Â§ 913 that on its face makes a disposition different from that which wouldpertain if the right of way were an easement at common law. Although Congress has on many occasions addressed the disposition ofrailroad rights of way, controversies may be expected to continue to arise because of issues as to thenature and scope of Congress' authority over the rights of way; the nature and scope of the interestof the railroad, the validity of attempts by the railroad to convey all or part of that interest,ambiguities associated with dating abandonment, disputes between adjacent landowners overperceived entitlements to lands within a right of way, and assertions that compensation is owed.
During the drive to settle the western portion of the United States, Congress sought toencourage the expansion of railroads, at first through generous grants of rights of way and lands tothe great transcontinental railroads between 1862 and 1871, and later through the enactment of ageneral right of way statute. The 1875 General Railroad Right of Way Act permitted railroads toobtain a 200-foot federal right of way by running tracks across public lands. Some railroads alsoobtained rights of way by private purchase or through the exercise of state or federal powers ofeminent domain. Therefore, not all railroad rights of way are on federal lands, and the propertyinterest of a railroad in a right of way may vary. The courts have characterized the interest held bya railroad pursuant to a federally granted right of way variously: as a "limited fee" in the case of aland grant right of way, or as an easement in the case of a right of way under the 1875 Act.
As railroads closed rail lines, questions arose as to the disposition of the lands within theformer rights of way. Many individual instances were resolved in separate legislation. In 1922,Congress enacted a general law to provide that federal railroad rights of way on federal lands becomethe property of the adjacent landowner or municipality through which the right of way passed. Thislaw is unclear in several respects -- for example, as to what procedures are sufficient to constitutean abandonment of a right of way, and on what authority Congress could provide for theestablishment of highways within the right of way after abandonment of the rail line. In 1988, inwhat is popularly known as the Rails to Trails Act, Congress opted to bank rail corridors, keepingthem available for possible future use as railroads and making them available for interim use asrecreational trails.
Some cases have held that Rails to Trails results in takings of private property whennon-federal easements were involved. In the context of federal rights of way, recent cases have heldthat the federal government did not retain any interest in federal railroad rights of way when theunderlying lands were conveyed into private ownership, and therefore if an abandoned rail corridoris held for interim trail use, compensation is owed the adjacent landowners. However, Congress haslegislated numerous times over the years regarding federal railroad rights of way, as though Congressbelieved it had continuing authority over their ultimate disposition. Issues may continue to arisesurrounding the disposition of federal railroad rights of way, possibly involving, for example, theauthority of Congress over the rights of way, the nature of the interest held by the railroad, thevalidity of attempts by the railroad to convey all or part of that interest, and disputes betweenadjacent landowners over perceived entitlements to lands within a particular right of way.
This report discusses the history of federal railroad rights of way and some of the casesaddressing them. It will be updated from time to time as circumstances warrant.