Argument Preview

Next week, the Federal Circuit will hear oral arguments in Hardy v. the United States. Hardy v. United States is a takings case on appeal from the United States Court of Federal Claims. The heart of the dispute concerns whether several deeds at issue granted an interest in fee simple or an easement in the disputed parcels of land. This case attracted one amicus brief discussed further below. Two issues will be presented for the court’s review. Here is a preview of the case and issues on appeal.


“[w]hether the CFC erred in ruling that a number of deeds for the rail corridor at issue in this case conveyed merely an easement to the railroad where no language in the deeds overcomes the presumption that deeds convey a fee interest under Georgia law. Similarly, whether the CFC erred in ruling that deeds conveying land to the state for a public road conveyed merely an easement, rather than a fee.”


“[w]hether the CFC erred in ruling that issuance of a notice providing time to negotiate possible conversion of a right-of-way for interim use as a trail effectuated a physical taking of certain Plaintiffs’ property where the notice did not actually apply to the section of rail line adjacent to those Plaintiffs’ land, where the railroad lacked any intent to abandon this section of rail line, and where trail conversion never occurred.”

The plaintiffs (“Hardy”) are 112 individuals who collectively own 173 parcels of land adjacent to a railroad corridor in Newton County, Georgia.

Hardy contended that they own the disputed property in fee simple, and that the railroad acquired easements limited to railroad purposes. Further, that the conversion of the railroad line for use as a public recreational trail under the Trails Act exceeded the scope of the easement and thus constituted a taking.

In response, the U.S argued that no taking had occurred for the following reasons:

“(1) for those parcels burdened by a strip of land acquired by CGA in fee simple, plaintiffs lack the requisite ownership interest needed to assert a taking; (2) for those plaintiffs whose land does not adjoin the rail corridor due to an intervening public road, plaintiffs have no claim; (3) for plaintiff whose parcel is burdened by a strip of land acquired by the railroad through adverse possession and held by the railroad in fee simple, plaintiff lacks the requisite ownership interest needed to assert a taking; (4) for plaintiffs whose parcels are burdened by railroad easements sufficiently broad to encompass future trail use, plaintiffs are precluded from establishing a taking; and (5) for plaintiffs whose parcels are burdened by railroad easements limited to railroad purposes, no taking has occurred because the railroad has not abandoned the rail line and extinguished its easements.”

The National Association of Reversion Property Owners, Professor James W. Ely Jr., the Cato Institute, and the Southeastern Legal Foundation filed an amicus brief in the case. In the brief, the amici argue that Hardy et al. held title to the land in question in fee simple. Further, the amicus brief argues that the Court of Federal Claims was correct in holding that in 1890 the railroad was granted an easement. The brief offers detailed guidance to the court in how to construe the language that created the railroad’s property interest in the disputed property. The brief then argues that the original easements were terminated when the railroad no longer operated across the strip of land. In conclusion, the brief advises the Federal Circuit to affirm the lower court’s decision.

We will keep track of this case and report on any developments.