In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-2876, 09-2879
S AMUEL C. JOHNSON 1988 T RUST, et al.,
Plaintiffs-Appellants,
v.
B AYFIELD C OUNTY, W ISCONSIN,
Defendant-Appellee.
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 06-cv-348-bbc—Barbara B. Crabb, Judge.
A RGUED A PRIL 13, 2011—D ECIDED JUNE 17, 2011
Before P OSNER, W OOD , and T INDER, Circuit Judges.
P OSNER, Circuit Judge. The plaintiffs are landowners
in Bayfield County, a rural county at the northern tip of
Wisconsin. They brought this suit to quiet title to their
property, over which the County claims a right derived
from federal law to build snowmobile trails; the plain-
tiffs contest the County’s claim. The district court
granted summary judgment in favor of the plaintiffs. We
2 Nos. 09-2876, 09-2879
reversed, 520 F.3d 822 (7th Cir. 2008), on grounds
unrelated to the present appeal, which is by the plain-
tiffs from the district court’s decision on remand,
rendering judgment as a matter of law for the County.
The suit arises in the first instance under state law,
and since there is not complete diversity of citizenship
the case might seem to lie outside federal jurisdiction.
But as we held in our previous opinion, 520 F.3d at 827-
28, correctly though perhaps a bit cryptically, because
the property was once owned by the federal govern-
ment and the plaintiffs ultimately base their suit on
the terms of the original federal grants, the suit may be
said to arise under federal law as well. See, e.g., Hopkins
v. Walker, 244 U.S. 486, 489-90 (1917). The County, more-
over, could just as well have brought the quiet-title
action as the plaintiffs, and in that event the claim
would have arisen under federal law because, as we’ll
see, that’s the basis of the County’s claim to a right
of way. That brings the case—because a suit to quiet title
is functionally a form of declaratory-judgment action
(see Samuel Bray, “Preventive Adjudication,” 77 U. Chi.
L. Rev. 1275, 1276 (2010)), the only relief sought being
a declaration of rights—within the rule that “in declara-
tory judgment cases, the well-pleaded complaint rule
dictates that jurisdiction is determined by whether
federal question jurisdiction would exist over the pre-
sumed suit by the declaratory judgment defendant.”
GNB Battery Technologies, Inc. v. Gould, Inc., 65 F.3d 615,
619 (7th Cir. 1995).
The case also satisfies the jurisdictional standard of
Grable & Sons Metal Products, Inc. v. Darue Engineering &
Nos. 09-2876, 09-2879 3
Mfg., 545 U.S. 308, 312-16 (2005), one of those cases in
which the Supreme Court seems shy about taking a
definite stand. See, e.g., New Hampshire v. Maine, 532 U.S.
742, 749-51 (2001), discussed in Walton v. Bayer Corp., No.
10-3462, 2011 WL 1938428, at *6 (7th Cir. May 23, 2011).
Grable tells us to ask: “does a state-law claim necessarily
raise a stated federal issue, actually disputed and sub-
stantial, which a federal forum may entertain without
disturbing any congressionally approved balance of
federal and state judicial responsibilities”? 545 U.S. at
314. The answer in this case is “yes.”
With federal jurisdiction secure, we turn to the merits.
The material facts are uncontested. In the early days of
railroading, the federal government encouraged this
immensely promising mode of transportation by a
variety of means, including by imposing a checker-
board pattern on large areas of federal public domain, see,
e.g., Leo Sheep Co. v. United States, 440 U.S. 668, 672-73
(1979), some of it in Wisconsin. Federal statutes enacted
in 1856 and 1864 divided this public domain land in
Wisconsin into identical square sections, designated by
alternating odd and even numbers, and gave the odd-
numbered sections to states to give to railroads in fee
simple, while retaining the even-numbered sections for
sale by the government. Act of June 3, 1856, ch. 43, 11
Stat. 20; Act of May 5, 1864, ch. 80, 13 Stat. 66.
Railroads needed to be able to run their tracks
across even-numbered sections as well as across the
odd-numbered ones that they owned, since each odd-
numbered one was surrounded by even-numbered ones,
4 Nos. 09-2876, 09-2879
just as each square on a black-and-white checkerboard
(unless the square is at a side or end of the board) is sur-
rounded by squares of the other color. But the railroads
didn’t need all the land in either type of section for
their tracks. They were expected to use part of the odd-
numbered sections (which they owned) for their tracks
and rent or sell the rest; the sale and rental proceeds
would help not only to finance the construction or ex-
tension of their lines but also to pay for the purchase
or condemnation of any rights of way that they needed
in the even-numbered sections. Owners and renters
of land proximate to the tracks, such as farmers and
lumbermen, would become part of the railroad’s cus-
tomer base.
The plaintiffs own lots in Bayfield County in sections
numbered 21 (odd) and 32 (even). A railroad used to
cross these lots, and the County premises its asserted
right to build a snowmobile trail where the railroad
tracks used to be on the railroad’s right of way and on
what the County argues is a federal “reversionary inter-
est” in the right of way, an interest it contends was
given to the County by a federal statute enacted in 1922.
We begin our analysis with the lot in the even-numbered
section. It had been bought by the plaintiffs’ remote
predecessor from the federal government in fee simple
in a series of transactions between 1882 and 1884 (remem-
ber that it was the even-numbered lots that the govern-
ment sold off rather than giving to states to give to rail-
roads). The railroad obtained a right of way over the lot
in the form of an easement (a right to use a piece of land
for a specified purpose, rather than fee simple), by con-
Nos. 09-2876, 09-2879 5
demnation, and the nature of such a right may seem to
nix the County’s argument. For the railroad’s successor
abandoned the right of way; and when an ease-
ment is abandoned the owner of the fee simple is
revested with full rights to the property. But the County
argues that, no, a federal statute enacted in 1852, and
thus before the checkerboard statutes were enacted, had
granted a right of way in federal lands to railroads
that were “now [chartered] or that may be chartered
within ten years hereafter.” Act of Aug. 4, 1852, ch. 80, 10
Stat. 28. The right of way reverted—the argument con-
tinues—to the federal government when its use by the
railroad ended, and the reversionary interest passed to
the County by virtue of the 1922 statute.
The 10-year deadline in the 1852 Act for chartering
a railroad that would obtain a federal statutory right of
way was extended to fifteen years by the Act of July 15,
1862, ch. 179, 12 Stat. 577. A railroad called the St. Croix
and Lake Superior Railroad was chartered in 1854, well
within that period, to build a rail line that would
have crossed the plaintiffs’ lots. But it failed to build
anything. In 1871, another railroad, the North Wisconsin
Railroad, was chartered to build a rail line on the same
route and eventually it (actually a successor, but we can
suppress that detail) did so. But because it had been
chartered after the 15-year deadline for obtaining
a federal right of way expired in 1867, it acquired no
rights under the 1852 Act. And as there was no corpo-
rate relationship between the St. Croix and North Wis-
consin railroads—no asset or stock acquisition that
6 Nos. 09-2876, 09-2879
might have made the latter a successor to the former
(and no mention of the 1852 Act in the North Wis-
consin’s charter)—the chartering of the St. Croix could
not be deemed the chartering of the North Wisconsin.
Cf. Chicago Great Western Ry. v. Minnesota, 216 U.S. 234, 239-
40 (1910); Northern Pac. Ry. v. Minnesota ex rel. Duluth, 208
U.S. 583, 587 (1908); Keokuk & Western R.R. v. Missouri, 152
U.S. 301, 304-12 (1894). The North Wisconsin implicitly
acknowledged its failure to comply with a condition
precedent to obtaining a right of way under the 1852
Act by using condemnation to obtain the rights of way
that it needed for its railroad line.
The County argues that only the United States has
standing to claim that conditions in a federal land grant
have not been met. But the cases on which it relies, such
as Schulenberg v. Harriman, 88 U.S. (21 Wall.) 44 (1874),
and Van Wyck v. Knevals, 106 U.S. 360 (1882), concern
conditions subsequent—conditions specified in the
grant that would have entitled the government to
rescind it; if the government isn’t interested in doing
that, no one can butt in. But the question is whether
the North Wisconsin Railroad satisfied a condition pre-
cedent (namely, becoming chartered by 1867) to ob-
taining any rights under the 1852 Act. If it didn’t—and
it didn’t—it never acquired a right of way that might
have descended to Bayfield County.
In 1875 the last relevant event before the plaintiffs’
predecessor perfected his acquisition of the lot in 1884
occurred—Congress authorized the Secretary of the
Interior to create railroad rights of way in federal lands.
Nos. 09-2876, 09-2879 7
Act of March 3, 1875, ch. 152, 18 Stat. 482. The lot was
still federal land when the Act was passed, but there is
no indication that the North Wisconsin Railroad
complied with the statutory requirements for obtaining
a right of way; instead, as we said, it used condemna-
tion. A 1916 report by the Interstate Commerce Com-
mission on lands owned or used by the North Wis-
consin described the right of way that crossed the lot as
having been obtained by condemnation; lands instead
obtained under the 1875 Act were explicitly so des-
ignated in the report.
Furthermore, the rights of way created under the au-
thority of that Act were easements; the government
retained fee simple. So although “all such lands over
which such right of way shall pass shall be disposed
of subject to such right of way,” Act of March 3, 1875,
supra, § 4, 43 U.S.C. § 942-5, when in the 1880s the gov-
ernment sold the plaintiffs’ predecessor the lot, the rail-
road, even if it had had rights under the 1875 Act (we
said it didn’t), had merely an easement. A variety of
official documents confirm this. See, e.g., 12 Public Lands
Dec. 423, 428 (Jan. 13, 1888); 14 Public Lands Dec. 338, 342
(Mar. 21, 1892); 27 Public Lands Dec. 663, 664 (Nov. 4,
1898); Act of June 26, 1906, ch. 3550, 34 Stat. 482, codified
at 43 U.S.C. § 940. And as we noted earlier, the termina-
tion of an easement restores to the owner of the fee
simple full rights over the part of his land formerly occu-
pied by the right of way created by the easement. Restate-
ment (Third) of Property: Servitudes § 7.4 comments a, c, f
(2000).
8 Nos. 09-2876, 09-2879
Marshall v. Chicago & Northwestern Transportation Co.,
31 F.3d 1028, 1031 (10th Cir. 1994), holds, it is true, that
the 1875 Act created a reversionary interest in the
federal government, in which event a right of way aban-
doned by a railroad would revert to the federal govern-
ment and so be transferable to the County. But
Hash v. United States, 403 F.3d 1308, 1316-17 (Fed. Cir.
2005), and Beres v. United States, 64 Fed. Cl. 403, 425-
28 (Fed. Ct. Cl. 2005), are to the contrary, and, though
criticized in Darwin P. Roberts, “The Legal History
of Federally Granted Railroad Rights-of-Way and the
Myth of Congress’s ‘1871 Shift,’ ” 82 U. Colo. L. Rev. 85, 150-
64 (2011), make better sense than Marshall, as well as
being supported by the characterization in Great Northern
Ry. v. United States, 315 U.S. 262, 271-79 (1942), of the
rights of way created under the 1875 Act as “easements.”
The Act does not hint at a reversionary interest, and
who searching the chain of title of a lot never owned by
a railroad would suspect a lurking governmental right
so unsettling to the security of private property rights?
If Marshall was correctly decided, no one in 2011 who
owned land subject to the 1875 Act—that is, land over
which there had once been a federal railroad right of
way—has a right to prevent the federal government
from recapturing the right of way—of course without
compensation—and giving it away or selling it. (The
County argues that the government gave it the right of
way through the plaintiffs’ lot in the even-numbered
section in the 1922 statute.) Countless tracts of private
land would be encumbered with a federal easement even
though no conferral of such an interest appeared in a
statute or a chain of title.
Nos. 09-2876, 09-2879 9
Let’s turn to the lot in the odd-numbered section. The
federal government had conveyed it in fee simple
to Wisconsin, which in turn had conveyed it to the
North Wisconsin Railroad in 1874. More than a century
later—in 1980—the railroad’s successor, the Chicago
and North Western Transportation Company, had sold
the lot to the plaintiffs, also in fee simple. A railroad
that obtained land in fee simple had no need for a right
of way; you don’t need a right of way in order to be
allowed to lay tracks on land that you own. But
Bayfield County argues that the grant of railroad rights
of way in the 1852 Act had taken the right of way to
build across the plaintiffs’ lot out of what otherwise
would have been an unencumbered fee simple, with
the result that when the land was later transferred to
the State of Wisconsin (ostensibly in fee simple) and
then to the railroad (also in fee simple), the right of way
remained and was subject to a federal reversionary
interest that the County claims to have acquired more
than a century later.
This argument fails at the threshold because the North
Wisconsin Railroad, as we explained earlier, acquired
nothing under the 1852 Act. But the County has a back-
up argument, which it presses very hard, based on our
decision in Mauler v. Bayfield County, 309 F.3d 997, 1000-
02 (7th Cir. 2002), a case involving the same North Wis-
consin rail line as this case, the Maulers being other
owners of land through which the line passes. Mauler
says that “the original grants of land in this case were
grants to the Railroad in fee simple that included an
implied right of reverter to the United States under
10 Nos. 09-2876, 09-2879
the rationale first espoused in [Northern Pacific Ry. v.
Townsend, 190 U.S. 267 (1903)].” Id. at 1001.
But there is a crucial difference between Townsend on
the one hand and Mauler and the present case on the
other. The issue in Townsend was whether the owner
of land adjacent to a railroad line could obtain by
adverse possession under state law part of a right of
way that had been expressly granted by the federal gov-
ernment to the railroad under authority of still an-
other nineteenth-century statute, the Act of July 2,
1864, ch. 217, 13 Stat. 365, which both chartered the North-
ern Pacific and granted the new railroad extensive
interests in federal lands, including the right of way in
question. The Court held that the landowner could not
obtain a chunk of the right of way by adverse posses-
sion because the government had expressly created a
railroad right of way, and the Court in Townsend
reasoned that the government would not have wanted
the land used for any other purpose; so no other use
was permissible.
The statutes under which the federal lands in this
case passed into private hands did not create railroad
rights of way; in the case of the odd-numbered sections
they directed the conveyance of the land outright to the
railroad and in the case of the even-numbered ones
they authorized sale to buyers not limited to railroads.
The railroad could run its line through the odd-
numbered sections, which it owned, and continue its
line through the even-numbered sections by condemning
a right of way. There was no federal grant of a rail-
Nos. 09-2876, 09-2879 11
road right of way on which to base an inference of
a federal reversion.
Mauler recognized no difference “between a land
grant for a ‘right of way . . . for the construction of a
railroad’ (the Townsend grant) and a land grant ‘for the
purpose of aiding the construction of a railroad’ (the
grant in [Mauler]).” 309 F.3d at 1001. Both the 1864 grant
in Townsend and the grants under the 1856 Act and
the (different) 1864 Act in Mauler and the present case
were indeed intended to promote the railroad industry.
But they went about it in different ways. The Act
involved in Townsend created rights of way; the Acts
involved in Mauler and the present case gave federal
land to railroads, most of which they would sell, and
authorized the sale of adjacent federal lands to buyers
in general to encourage economic development along
the railroads’ routes and thus enlarge the railroads’
customer base. These are different promotional tech-
niques, and the second, which is the one pertinent to
this case, does not create rights of way—as is further
apparent from the fact that nineteenth-century
federal statutes created railroad rights of way of
differing widths. See, e.g., Act of Aug. 4, 1852, supra,
§ 1 (100 feet); Act of March 3, 1875, supra, § 1 (200
feet); Act of July 2, 1864, supra, § 2 (400 feet). If grants
under the 1856 and 1864 Acts create an implied federal
reversionary interest in these rights of way, how wide
are they? The Acts don’t say; they don’t mention rights
of way. How would a court determine their width?
Mauler mentions only in a footnote, and does not cite,
the 1856 statute and the relevant 1864 statute, which are
12 Nos. 09-2876, 09-2879
the sources of the plaintiffs’ property rights. It does not
mention either the 1852 or 1875 statutes that, like the
1864 statute involved in Townsend, created railroad
rights of way—and since Mauler was decided, cases that
we cited earlier (Hash and Beres) have persuasively
rejected an implied federal reversionary right under the
1875 statute. We did not have the benefit of those cases
when we decided Mauler, and we are not bound by
rulings on issues that the briefs skirted and the
opinion barely addressed.
Mauler is further distinguishable from the present
case because in Mauler the railroad had retained in fee
simple the strip of land that constituted its right of way,
and it conveyed the fee simple to Bayfield County.
The County was therefore entitled, quite apart from
any federal rights in the land, to build a recreational
trail on it. There was no need to posit an implied
federal reversionary interest.
On the foundation that we have been busy disman-
tling—that there was once upon a time a grant by
the federal government of a railroad right of way in the
plaintiffs’ lots—the County piles still another federal
statute, 43 U.S.C. § 912. Enacted in 1922, it provides that
“whenever public lands of the United States have been . . .
granted to any railroad company for use as a right of
way for its railroad . . . , and use and occupancy of said
lands for such purposes has ceased or shall hereafter
cease, whether by forfeiture or by abandonment by
said railroad company declared or decreed by a court
of competent jurisdiction or by Act of Congress, then
Nos. 09-2876, 09-2879 13
and thereupon all right, title, interest, and estate of the
United States in said lands shall [be vested in the owner
of the land traversed by the right of way], except such
part thereof as may be embraced in a public highway legally
established within one year after the date of said decree or
forfeiture or abandonment” (emphasis added).
A “public highway legally established” is conceded
by the plaintiffs (albeit rather in the teeth of the ap-
plicable statutory language, see Wis. Stat. §§ 340.01(22),
(74), 350.01(17); but see Mauler v. Bayfield County, 204
F. Supp. 2d 1168, 1177-79 (W.D. Wis. 2001), aff’d, 309
F.3d 997 (7th Cir. 2002)) to include snowmobile trails;
and Bayfield County argues that the statutory language
that we just quoted authorized it to build such trails on
the plaintiffs’ lots. The premise (acknowledged by the
County), given the first sentence of section 912 quoted
above, is that the North Wisconsin Railroad was granted
a right of way in the plaintiffs’ lots by the federal gov-
ernment because those lots had once been federal
lands. We have rejected that premise; the 1856 and 1864
statutes, which provided for the relinquishment of fed-
eral ownership, created or retained no rights of way.
Furthermore, although the railroad line traversing the
lots was abandoned in 1980, it was not until the mid-
2000s that the County declared its intention to build
snowmobile trails on them. So the County missed the one-
year statutory deadline for “embracing” a right of way
in a public highway.
The County ripostes that the abandonment was inef-
fectual because it was not “declared or decreed by a
14 Nos. 09-2876, 09-2879
court of competent jurisdiction or by Act of Congress.”
That is literally true, but read literally the statute is non-
sensical.
The process of rail abandonment involves ob-
taining the permission of the Interstate Commerce Com-
mission (or, nowadays, its successor, the Surface Trans-
portation Board) followed by the pulling up of the
tracks. The Chicago and North Western Transportation
Company (the North Wisconsin Railroad’s successor)
obtained the ICC’s permission to abandon the Bayfield
line, and having done so pulled up the tracks in 1980
and even quitclaimed the right of way to the plaintiffs,
though a quitclaim deed would not affect title to a right
of way owned by someone other than the quitclaimer.
Owners of land traversed by the now abandoned rail
line could out of an abundance of caution have sued
to quiet title by obtaining a judicial ruling that the
line had indeed been abandoned. But this formality
has not been observed in rail abandonments. Many thou-
sands of miles of railroad were abandoned between
1922, when section 912 was enacted, and 1988, when the
National Trails System Improvement Act, 16 U.S.C.
§ 1248(c), ordained that abandoned federal rights of
way no longer go to private owners but instead revert
to the federal government unless they come within the
public-highway provision of 42 U.S.C. § 912. Yet the
parties (and we) have been unable to find more than
a handful of judicial rulings declaring a rail line aban-
doned under section 912. The regulator’s (the ICC’s or
STB’s) permission to abandon, coupled with the removal
Nos. 09-2876, 09-2879 15
of the tracks (abandonment in fact), was sensibly
accepted as adequate proof of abandonment in Keife v.
Logan, 75 P.3d 357, 358 (Nev. 2003) (per curiam). A formal
declaration was necessary only if contrary proof was
presented or surprise claimed.
It is true that the Ninth Circuit, in Avista Corp. v. Wolfe,
549 F.3d 1239, 1250-51 (9th Cir. 2008), ruled that
there can be no “retroactive” declarations of abandon-
ment; and if that is right then anyone claiming aban-
doned property had to have gotten a judicial declara-
tion at the outset that the right of way had been aban-
doned, which as we said was not the practice. But Avista
is distinguishable from our case because the ICC had
not granted permission to abandon the right of way in
that case, and that was a significant omission because
the ICC’s grant of permission to abandon a railroad line
signals imminent abandonment to anyone wanting
to oppose the abandonment; no one can credibly
claim surprise if the railroad complied with the ICC’s re-
quirements for providing notice to all possibly affected
persons. See 49 C.F.R. § 1152.20(a). Avista is also inconsis-
tent with Keife v. Logan.
But most important, it is unpersuasive. The court
thought the statute must be construed to require that the
declaration precede the abandonment because to allow
“retroactive” declarations would result in “arbitrary
forfeitures of property rights.” 549 F.3d at 1250. There is
no retroactivity or arbitrariness. Suppose A has for
many years owned property on which B now
encroaches, claiming to own a piece of it. The encroach-
16 Nos. 09-2876, 09-2879
ment is “open and notorious,” as the cases say. Never-
theless A does nothing. After the expiration of the
period of prescription, say seven years, B brings suit
to quiet title, arguing that by operation of the doctrine
of adverse possession it has acquired the part of A’s
property on which it encroached, and prevails. A loses
the property, but the ruling merely confirms that he
had already lost it, as a result of B’s actions (and A’s
inaction) in the past. If that’s a retroactive dispossession,
it’s entirely proper. But why haggle over words? For
who denies the legitimacy of acquisition of title by
adverse possession (unless there is a conflict between
state and federal rights, as held in Townsend)? And what
is this case about but shifting title to abandoned
property by a parallel method?
The plaintiffs, being the owners of the land traversed
by the railroad’s right of way, acquired the right of way
(if there was one—we said earlier there was not),
by operation of section 912, a year and a day after the
railroad, having obtained the ICC’s permission to
abandon its line, pulled up the tracks, completing the
abandonment. The County was aware of the abandon-
ment and indeed considered buying the right of way
from the railroad at that time. Instead it waited a quarter
of a century and then claimed a right to obtain the right
of way for nothing. That claim has no basis in section
912. The County can still build snowmobile trails on the
plaintiffs’ lots if it wants, but it hasn’t yet acquired the
right to do so, because it failed to invoke the right
within the statutory deadline of one year. It will have
to buy the right from the plaintiffs or take it by exercise
of its condemnation powers.
Nos. 09-2876, 09-2879 17
We are supported in thinking a prospective judicial
declaration of abandonment unnecessary not by a literal
reading of section 912 (which isn’t possible, because
“decree or forfeiture or abandonment” is a garble) but
by reflection on how onerous the process for obtaining
regulatory authorization to abandon a rail line is, see
49 C.F.R. §§ 1152.1 et seq., and how even if authorization
is obtained the railroad still must run the gauntlet of
judicial review in order to be allowed to abandon a line.
28 U.S.C. §§ 2321, 2342(5); Chicago & North Western Trans-
portation Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 321-
23 (1981). A railroad is hardly likely to incur the ex-
pense of abandonment proceedings if it doesn’t intend
to abandon the rail line if given permission to do
so—and promptly too, as authority to abandon expires
after a year. 49 C.F.R. § 1152.29(e)(2). It is true that
many years after the abandonment of the Bayfield line
Congress authorized a more abbreviated procedure for
abandonment than was followed by the railroad in this
case. 49 U.S.C. § 10502; 49 C.F.R. §§ 1121.1 et seq. But
since the line was abandoned under the old procedure,
the new procedure is inapplicable and so we needn’t
consider whether it provides enough notice and other
process to make a judicial declaration necessary for an
abandonment under the new procedure to be effective.
With permission to abandon granted upon adequate
notice to potentially interested persons by the agency
authorized to determine whether to permit abandon-
ment and with the permission sure to be acted on by
removal of the tracks, a requirement of a judicial pro-
ceeding issuing in a decree of abandonment would
18 Nos. 09-2876, 09-2879
be a waste of time and money. Would a judge have to
demand testimony that the railroad really did remove
the tracks? And that it didn’t remove them just to
clean and polish them, meaning to re-lay them later?
The proceeding would be empty.
When the rare case arises in which there is a dis-
pute over whether a right of way has been abandoned,
a claimant who doubts that it has been can sue; but he
cannot just claim that the absence of a formal prospec-
tive declaration in a judicial opinion or Act of Congress
means that the right of way never was abandoned. And,
to repeat, we reject the premise that either lot at issue
in this case was ever encumbered by a federally
granted railroad right of way that might later have re-
verted to the federal government and passed from
it to Bayfield County.
So the County has no right to build a snowmobile trail
across the plaintiffs’ lots without obtaining that right
by purchase or condemnation, and the judgment in the
County’s favor is therefore reversed with instruc-
tions to enter judgment for the plaintiffs.
R EVERSED.
6-17-11