Argument Recap

Last week, the Federal Circuit heard oral arguments in Hardy v. United States. Hardy v. United States is a takings case on appeal from the United States Court of Federal Claims. The case concerns whether several deeds at issue granted an interest in fee simple or an easement in the disputed parcels of land.

Here is a review of the case and issues on appeal.

Two issues were presented for the court’s review.


[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.

The main point of discussion during oral argument was whether the deeds in question conveyed an easement or an estate in fee to the railroad.

Counsel for the government contended that the “right of way” language in the deeds at issue did not convey an easement. Instead, the “right of way” language described an intended use for the land in question. Thus, the railroad obtained titles to the land in fee simple.

But, Judge Lourie noted that the deeds at issue described a “right of way.” Counsel for the government pointed out that there was a difference between a grant of a “right of way” and a grant of a strip of land for a “right of way.” Counsel for the government also argued that Georgia law presumes that a conveyance of land is a fee simple transfer unless other limitations are placed on the transfer.

Counsel for the plaintiffs countered that Georgia law contains no such presumption. Instead, he argued that the law simply states that deeds are presumed to convey fee simple unless they specifically indicate the conveyance of a lesser estate. Counsel for the plaintiffs argued that the fact that the deeds were titled “right of way” deeds meant that the railroad received an easement. Counsel concluded his arguments by reviewing a long line of favorable Georgia cases that interpreted similar deed language as conveying easements.

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