dissenting, joined by Circuit Judges MICHEL and SCHALL.
This case asks whether J. Paul and Patricia Preseault (Preseaults) own property that has been taken in violation of their Fifth Amendment rights as a result of the use of an old railroad right-of-way which crosses their land as a public walking and bicycle trail, while the right-of-way is held for future rail use.
The State of Vermont (State) cross-appeals from the decision of the United States Court of Federal Claims granting the Preseaults’ motion for partial summary judgment, and denying the cross-motions of the State and the United States for summary judgment in Preseault v. United States, 24 Cl.Ct. 818 (1992). The State’s appeal challenges the threshold decision of the Court of Federal Claims that the Preseaults currently possess a compensable property interest. The United States joins in the arguments made by the *1059State, and responds to the Preseaults’ appeal from a second decision of the Court of Federal Claims, Preseault v. United States, 27 Fed.Cl. 69 (1992), dismissing on the merits their complaint, which sought just compensation for the alleged taking by the United States of their real property. The second decision held that no taking by the United States of the Preseaults’ property results from the presence of the trad. Because I would rule in favor of the State on its cross-appeal, I would dismiss the Preseaults’ appeal as moot, and remand the case with instructions to dismiss the Preseaults’ complaint for failure to state a claim upon which relief can be granted.
By a vote of six to three, the court holds that the Preseaults are entitled to compensation from the United States for its taking of their property. Judge Plager’s opinion is joined by Judges Rich, Newman and Mayer. His opinion seeks to explain why the easements were terminated in 1975, and why the events in 1985 amount to a federal taking. Judge Rader’s opinion is joined by Judge Lourie. His conclusory opinion agrees completely with the result reached by Judge Plager, without expressing any reasoning or analysis of the pertinent facts. On the state law issues, I must assume that Judge Rader adopts the underpinnings of Judge Plager’s opinion. For convenience, then, the judges not joining my opinion will hereafter together be identified as the “plurality judges.”
I necessarily conclude that the plurality judges find some flaw in my opinion. There must, however, be some flaw in Judge Plager’s opinion, for otherwise there seems to be no explanation for the unwillingness of Judges Rader and Lourie to join it.
In short, after nearly a year of in banc consideration, the case is decided with no majority opinion of the court. The Pre-seaults have a victory, but the court’s holding has no precedential value.
I
At the heart of this case is the use of a railroad right-of-way as a current walking and bicycle trail, pursuant to a contract which preserves the easement for future rail use (a concept known as “railbanking”), while allowing the interim trail use. The owners of the land over which the current trail crosses contend that the presence of the trail under color of federal law violates their rights under the takings clause of the Fifth Amendment to the U.S. Constitution.1
Whether the Preseaults presently have a justiciable Fifth Amendment claim, however, depends upon whether the right-of-way has been abandoned. This is so, because if the right-of-way still exists, and if the current use of the original right-of-way is permissible under Vermont law, then the Preseaults would have no present right to claim ownership of the underlying land, free of the burden on their property created by the trail. *1060In short, their takings claim would be unripe and therefore moot.2
Indeed, the United States Supreme Court seems to have had this very issue in mind when it addressed another aspect of this case. As Justice Brennan, writing for the Court, noted:
Other[] [rights-of-way] are held as easements that do not even as a matter of state law revert upon interim use as nature trails. Some state courts have held that trail use does not constitute abandonment of a right-of-way for public travel so as to trigger reversionary rights.
Preseautt v. ICC, 494 U.S. 1, 16 & n. 9, 110 S.Ct. 914, 924 & n. 9, 108 L.Ed.2d 1 (1990). Similarly, Justice O’Connor, writing for herself and Justices Scalia and Kennedy, noted:
[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 [Preseaults] possess the property interest that they claim has been taken____ Similar reference to state law has guided other courts seeking to determine whether a railroad right of way lapsed upon the conversion to trail use. Compare State by Washington Wildlife Preservation, Inc. v. State, 329 N.W.2d 543, 545-48 (Minn.) (trail use within original interest, thus reversionary rights have not matured), cert. denied, 463 U.S. 1209 [103 S.Ct. 3540, 77 L.Ed.2d 1390] (1983), with Lawson v. State, 107 Wash.2d 444, 730 P.2d 1308 (1986) (change in use would give effect to reversionary interests).
Id. at 20-21, 110 S.Ct. at 926-27 (O’Connor, J., concurring) (some citations omitted).
In order to ascertain the nature of the Preseaults’ present property interest, we must examine state law, in this ease, the law of Vermont, the site of the property in question. Absent circumstances in which a federal land right is claimed, not here present, it is state law that creates the property rights to which Fifth Amendment rights attach. Lucas v. South Carolina Coastal Council 505 U.S. 1003, 1030, 112 S.Ct. 2886, 2901, 120 L.Ed.2d 798 (1992).
II
The state property law issues in this case are complex: hence the length of this opinion. Before proceeding further, it will be useful for me to synopsize the opinion, so that the issues and their correct resolution will be clear.
The easements in question were created in the 1890’s. The Court of Federal Claims concluded that the easements were terminated in 1975 when the railroad removed the tracks which ran over the easements. Accordingly, the Preseaults enjoyed fee simple absolute ownership of their land. In so concluding, the court erred as a matter of law.
Under Vermont law, easements are terminated if the owner’s conduct emits a clear and unequivocal signal of abandonment. In this case, the Court of Federal Claims looked only to the fact of track removal, and held it to supply the requisite signal of abandonment. The court erred, both in its reading of Vermont law on the subject, and in overlooking undeniable and uncontested facts which make it impossible to conclude that the easements were terminated in 1975. Consequently, the easements survived the removal of the tracks.
The next slice of Vermont property law that must be appreciated is that an easement is not terminated simply by its nonuse. Hence, from 1975 forward, the easements remained alive even when not in active use. This is important, because from the State’s point of view, retention of the easements fulfilled the State’s longstanding legislative policy of preserving such easements for future public uses. Indeed, in 1982, the State *1061enacted a specific law wMch requires the State to retain its easements when railroad operations cease on the rights-of-way. This law is quite simple, and it has retroactive application to the Preseaults’ property. The law mandates that the easements in question, which belonged to the State in 1982, be retained by the State for future transportation uses (not limited just to railroad transportation) and the law permits uses that are not inconsistent with future transportation uses.
After 1982, by force of the state legislation, the easements remained in effect. Under state law, the easements surely can be held in inventory (“railbanking”) for future uses, and the use of the easements as a walking and bicycle trail is not inconsistent with future transportation uses. As a matter of state legislation, then, the easements over the Preseaults’ property have not been terminated.
In addition, and alternatively, Vermont common law compels the same conclusion that the easements have not been terminated. The existence of the trail imposes no greater burden on the servient tenement than that which existed when the easements were used for active commercial freight operations, or thereafter as an idle storage facility for rolling stock. Just as many property law issues require lengthy explanation, so it is with the Vermont common law applicable to this case. My discussion of this point, below, is therefore quite long.
The Preseaults chose to sue the United States for the alleged harm to their property caused by the trail. They did not, as they could have, sue the State for its involvement in perpetuation of the easements. In my view, the role of the United States in the creation of the trail is de minimis. Here, the State developed and enforced a state policy of preserving old rail easements for future transportation uses. The contract parties to the creation of the trail include only state agencies. The hours and conditions of use of the trail are controlled by the contract parties, and the involvement of the United States is limited to providing federal consent to uses of the easements that are compelled by state law. No property interest of the Preseaults has been, or is, occupied by the United States. The federal government has not dictated the results here: if a government has taken the Preseaults’ property without compensation, it would seem to be the State of Vermont.
Ill
The background facts of this case, including precise descriptions of the land owned by the Preseaults, are stated at length in the two opinions of the Court of Federal Claims, as well as in other opinions dealing with issues preliminary to the litigation in the Court of Federal Claims. See Preseault v. ICC, 494 U.S. 1, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990); Preseault v. ICC, 858 F.2d 145 (2d Cir.1988); State v. Preseault, 163 Vt. 38, 652 A.2d 1001 (1994); Trustees of the Diocese of Vermont v. State, 145 Vt. 510, 496 A.2d 151 (1985). After a panel of this court had decided the instant appeals, see Preseault v. United States, 66 F.3d 1167 (Fed.Cir.1995), we vacated the panel’s opinion and ordered the ease reheard in banc, see Preseault v. United States, 66 F.3d 1190 (Fed.Cir.1995).
The dispute concerning the property in question dates back to 1898, when the General Assembly of Vermont chartered the Rut-land-Canadian Railroad Company (RCRC), giving it the right of eminent domain and authorizing it to acquire a right-of-way to construct and operate a railroad connecting the City of Burlington, Vermont and the town of Alburgh, Vermont.3 In 1899, the *1062RCRC used its eminent domain power to acquire a right-of-way over land owned by the William H.M. Barker Estate. In the same year, the RCRC acquired a right-of-way over the land of Mr. and Mrs. Frederick Manwell by warranty deed. The Preseaults now own the land over which the 1899 rights-of-way ran; their chain of title traces back to the Manwell grantors and the Barker eon-demnees. The rights-of-way originally acquired by the RCRC were transferred to the Rutland Railroad Company in 1900, then to the Rutland Railway Corporation in 1950, and finally to the State in 1963, pursuant to a statute authorizing the State’s purchase of the Rutland Rahway Corporation. The 1963 statute expressly authorized use of the subject rights-of-way “for continuous operation of a railroad, or other public purpose, provided, if necessary, approval for such ... other public purpose, is granted by the Interstate Commerce Commission of the United States.” 1963 Vt. Acts No. 162, § 4. The State then leased the rights-of-way to Vermont Railway, Inc., which operated train service over the rights-of-way until 1970, and thereafter used the rights-of-way until 1975 for the storage of railroad cars. The rails on the rights-of-way were removed in 1975. The City of Burlington in 1985 constructed a public walking and bicycle trail across several pieces of State-owned property, alongside existing active railroad tracks, and over the roadbed on the Preseaults’ property from which the tracks had been removed.
Much of the argument in the State’s appeal addresses the question of whether, pursuant to the 1899 conveyances, the RCRC obtained easements, on the one hand, or fee simple absolute interests, on the other hand, and in particular whether the Manwell warranty deed passed a fee simple absolute interest to the RCRC. The State hopes that this court will hold, as a matter of state law, that the 1899 transactions created such fee simple absolute interests in the RCRC. Were that the case, the Preseaults of course could not complain about the State’s present use of its own fee simple absolute property. For the reasons given in the opinion of the Court of Federal Claims, see Preseault, 24 Cl.Ct. at 826-27, I conclude that the Barker Estate condemnation transaction created an easement. Since I conclude, for the reasons set forth below, that the State has not abandoned its easement over the Barker portion of the Preseaults’ property, and since no distinction is made between the character of the Barker easement and that which would cover the Manwell tract, were it an easement, it is not necessary to decide whether the Manwell transaction created an easement or a fee simple absolute interest in the RCRC.
TV
The dispositive State law question in the State’s appeal is whether, on the undisputed facts before the Court of Federal Claims, the easements have been extinguished by the acts of the State. If the State is correct that, as a matter of law, no abandonment, and thus no extinguishment, has occurred, the Pre-seaults’ present takings claim is defeated.
Vermont law relating to the abandonment of railroad easements is carefully defined. Only the application of that law to the facts of this case is disputed. Resolution of that dispute requires us, as it did the Court of Federal Claims, to reach the conclusion that the Supreme Court of Vermont would reach were it required to adjudicate this particular dispute. At this point, a brief statement of the relevant Vermont law will suffice.
A
Concerning common law abandonment, in Vermont, an easement “cannot be extinguished by nonuse alone, no matter how long it continues.” Logue, Inc. v. Royea, 152 Vt. 499, 568 A.2d 357, 358 (1989). In addition:
[t]he burden on the party claiming an abandonment of an easement is a heavy one: Such an abandonment may be established only by “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.”
*1063Id. 568 A.2d at 359 (quoting Nelson v. Bacon, 113 Vt. 161, 32 A.2d 140, 146 (1943)). Whether an easement has been abandoned is a question of fact to be determined on the evidence, Stevens v. MacRae, 97 Vt. 76, 122 A. 892, 894 (1923), and the burden of proof that an easement has been abandoned is, of course, on the party asserting abandonment, Nelson, 32 A.2d at 146. When the facts of a given case show that an easement has been abandoned, its extinguishment is automatic, without need of any other act, administrative or otherwise. Hill v. Western Vermont Railroad Co., 32 Vt. 68, 74 (1859)4 The conclusion that an easement has been extinguished, based on facts that spell abandonment, is thus a question of law in Vermont. These propositions of law are well-settled in Vermont; there can be no doubt as to their full viability.
The Court of Federal Claims noted that active transportation services ceased on the easements over the Preseaults’ land in 1970. From 1970 to 1975, the easements were used to store railroad cars. While not a direct transportation service, the storage of the cars put the easement to active rail use until 1975, when Vermont Railway removed the tracks for use elsewhere for emergency repairs. The major structures on the rail line, “Bishops Bridge” and the North Beach Highway Underpass, and all culverts and the railroad subgrade remain intact. Preseault, 24 Cl.Ct. at 822.
The Court of Federal Claims recognized that Vermont law requires more than nonuse of a railroad easement to extinguish it, and that some act by the owner of the dominant tenement beyond nonuse is required to establish abandonment. For the Court of Federal Claims, the removal of the tracks in 1975 was enough to hold, on the facts, that abandonment had occurred in 1975. Id. at 833. No other fact is cited by the court, or found in the record of the ease, to sustain its conclusion.
B
During the pendency of the Preseaults’ litigation in the Vermont state courts to declare that the easements had been abandoned by removal of the tracks, denominated as Trustees of the Diocese of Vermont v. State, and decided in 1985, the State legislature passed in 1982 a specific enactment which required the State to retain, for future transportation purposes and for any other purpose not inconsistent with such future transportation purposes, all railroad rights-of-way it owned over which active rail service had been, or would be, terminated. The 1982 Act was made retroactive to apply to the easements that ran over the Preseaults’ property.
In considering whether the Preseaults presently enjoy fee simple absolute ownership in their property, the Court of Federal Claims did not assess the impact of the 1982 Act. For the reasons stated in this opinion, the Court of Federal Claims thus erred.
C
Vermont common law includes the “shifting public use” doctrine as part of its law concerning the abandonment of easements. See Brainard v. Missisquoi R.R. Co., 48 Vt. 107 (1874). In its broad outline, the shifting public use doctrine — judicially created as part of the common law — provides that the progression from the public use for which an easement is originally granted to another public use will not constitute an abandonment of the easement, so long as the new use is deemed permissible by the courts. Whether a new use is deemed permissible entails analysis of the scope and purpose of the original use, the relationship of the new use to the original use, and the public interest considerations in the relationship between the old and new uses. When a new use of an easement is judicially validated under the shifting public use doctrine, that use, by law, does not manifest “a purpose *1064inconsistent with its future existence” under the law stated in the Logue case.
In considering the State’s argument that the easement survived abandonment under the shifting public use doctrine, the Court of Federal Claims indicated favor with the proposition that the current use is not inconsistent with rail use, when seen as another public use, see id. at 834. Nevertheless, the court concluded that the hiatus in any use of the easement from 1975 to 1985 prevented employment of the shifting public use doctrine to validate the current uses of the easement on the Preseaults’ land. In short, the “discontinuity” of public use left the abandoned easement in extinguishment, and the court found that:
the shifting public use doctrine is inapplicable to the facts of this case____ [It] cannot be used to justify some 10 years of non-use or to resurrect after 10 years an easement otherwise extinguished under Vermont law, nor can it be used to revoke a grantor’s properly triggered reversion-ary interest.
Id. at 833.
Because the shifting public use doctrine is only relevant if the removal of tracks in 1975 did not extinguish the easement, I will focus on the 1975 issue and return later to the shifting public use doctrine as an alternative explanation of why the easements were not terminated in 1985.
V
We subject the decisions of the Court of Federal Claims on motions for summary judgment to de novo appellate review. Dehne v. United States, 970 F.2d 890, 892 (Fed.Cir.1992). In this case, the Court of Federal Claims concluded that, on the undisputed fact of track removal in 1975, the Preseaults had proven abandonment on the facts, and extinguishment of the easements as a matter of law, at that time. We must decide if any error was made by the Court of Federal Claims in its assessment of the undisputed facts.5
After a thorough examination of Vermont law and an intensive inspection of the undisputed facts in this case, I conclude that the Court of Federal Claims erred in its determination that the easements ceased to exist in 1975. Because of this error, the Court of Federal Claims did not decide whether the easements were subsequently extinguished in 1985 by the conversion to their present uses. The 1985 question, like the 1975 question, raises an ultimate issue of law on which there are no disputed facts. I see no reason, therefore, to remand the case for an initial decision on this issue. I think we are free to decide ourselves if, under Vermont law, the easements were terminated in 1985.
A. The Question of Abandonment in 1975
Reading the Vermont case law on abandonment in full, it is clear that the Court of Federal Claims erred by underestimating how difficult it is to abandon an easement in Vermont. Nonuse by the railroad for any purpose, alone, will not extinguish an easement, no matter how long the nonuse extends. Logue, Inc. v. Royea, 152 Vt. 499, 568 A.2d 357, 358 (1989). Consequently, the hiatus of 10 years from 1975 to 1985, when allegedly no use was made of the easement by the State, is not evidence of a present *1065intent to relinquish the easements. Even after years of complete nonuse and decay, the railroad could have resumed use, or continued further nonuse and decay, of the easements.6 Had such conduct occurred, the Preseaults would be unable to prove abandonment. That easements are difficult to extinguish in Vermont is emphasized by the significant burden attending one who seeks to prove abandonment. The affirmative conduct of the railroad (as owner of the dominant tenement in the easement) — signalling abandonment — must be conclusive and unequivocal. Nelson v. Bacon, 113 Vt. 161, 32 A.2d 140,146 (1943). The signal of abandonment must manifest a present intent to relinquish the easement, or a purpose inconsistent with future existence of the easement. La-gue, 568 A.2d at 359. Ambiguous signals, that is, signals capable of being understood in more than one way, will not suffice to show abandonment.7
The Court of Federal Claims’ underestimation of the essential thrust of Vermont abandonment law seems to have been driven, in substantial part, by its overemphasis on the importance of removal of tracks to the question of whether the easements had been abandoned. Such overemphasis resulted from a misreading of Vermont case law.
The Court of Federal Claims erroneously cited Stacey v. Vermont Central Railroad Co., 27 Vt. 39 (1854), for the proposition that a railroad right-of-way is abandoned when “the line was rerouted and the original tracks were used on a new line.” Preseault, 24 Cl.Ct. at 832. The court’s reliance on Stacey as authority that removal of tracks proves abandonment is misplaced. The case involved a railroad that surveyed a right-of-way over the plaintiffs property, and took the steps to condemn the way thus surveyed. A commissioners’ award of the damages due to plaintiff was entered, but the railroad did not pay. The defendants later “changed their line of road by locating the same on other land than that of the plaintiff, and upon which their road has been constructed.” Stacey, 27 Vt. at 43. Because Vermont law does not vest a condemned right-of-way in the condemnor until payment is made for the way, the Supreme Court of Vermont held that the railroad never acquired a right-of-way over plaintiffs land. The “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. (emphasis added). The opinion of the Vermont Supreme Court makes it clear that no easement was ever created in the premises, and that no track was ever laid over and then removed from the plaintiffs land. The only thing “abandoned” in the case was the original survey. Stacey did not involve the removal of tracks and is therefore irrelevant to the question of whether the easements in this ease were abandoned by removal of tracks.
The Court of Federal Claims cited American Steel & Iron Co. v. Taft, 109 Vt. 469, 199 A. 261 (1938) for the proposition that a “railroad that ceased to operate on right-of-way and that sold tracks and equipment to second railroad had abandoned right-of-way easement.” Preseault, 24 Cl.Ct. at 832. Again, the court misunderstood the Vermont case, and reliance thereon is similarly misplaced. The State of Vermont, at some point in the past, owned the West River Railroad. Later, the State sold to the American Steel & Iron Company “the rails, rail accessories and ties on the greater part of the length of the *1066railroad.” American Steel, 199 A. at 262. The plaintiff sought:
to enjoin the defendants, separate owners of lands through which the railroad passes, from interfering with the removal of such rails, accessories, and ties. The bill alleges that some of the defendants have notified the plaintiff that they claim that the right of way and materials upon their lands belong to them, and that they have forbidden the plaintiff from entering upon the railroad rights of way to remove the rails and materials____ The bill also alleges that the State of Vermont has not abandoned the right-of-way or easements which it acquired from the West River Railroad Company and has never abandoned the rails and other chattels thereof.
Id. The defendants’ demurrer to the bill was overruled by the chancellor and the bill was adjudged sufficient. On appeal, the ruling on the demurrer was challenged on the ground that “there is no equity in the complaint because the plaintiff has a full, adequate, and complete remedy at law.” Id. The question on appeal was thus whether the plaintiff had a remedy in replevin or trover, and if so whether that remedy precluded the bill. The question was not whether the state had abandoned the right of way itself.
The opinion of the Supreme Court, after examination of precedent, concluded that the tracks, accessories, and ties had not become a part of the realty, but remained chattels, subject to recovery in replevin or trover. Notwithstanding the availability of the causes of action at common law, the court sustained the overruling for the demurrer because the remedy at law was impaired, in that case, by the need of the plaintiff to maintain five separate suits against the individual defendants, who had not acted in concert. In the course of its discussion of the remedy available at common law, the court noted that the tracks and equipment “do not become part of the realty and may be removed by the rab-road company or its assigns on abandonment of the right of way or within a reasonable time thereafter.” Id. Thus, the court did not hold that sale of the tracks to another party constitutes abandonment of the railroad right-of-way. Instead, nearly the converse is correct; the court held that abandonment of a right-of-way does not constitute abandonment of the tracks structures and other equipment on the right-of-way. By affirming the overruling of the demurrer, the Supreme Court did not dislodge the State’s allegation that it had not abandoned the right-of-way or easements, and simply held that the plaintiff had the right to remove the rails, accessories and ties, regardless of the property law status of the right-of-way.8
In addition to the authority misconstrued by the Court of Federal Claims, one Vermont case mentioned but not fully discussed by the court stands out in particular on its facts, and is strongly, if not dispositively, instructive to the particular abandonment issue before us. The facts of the ease thus warrant full explication. Stevens v. MacRae, 97 Vt. 76,122 A. 892 (1923), involved a dispute over access by the plaintiff to his homesite across the defendant’s farm land. Plaintiff brought a bill in equity to restrain defendant from obstructing plaintiffs use of a right-of-way to his premises from a public road. The chancellor denied the bill. On appeal, the Supreme Court examined plaintiffs deed from defendant’s pre-*1067deeessor-in-interest, wMch provided “a right of way to the above-described premises across other land of said grantors from the public highway passing the dwelling house of the grantors.” Id., 122 A. at 892 (emphasis added). The Supreme Court held that under the deed “the grantee is entitled to a convenient, reasonable and accessible way.” Id. at 894. Since the grant had not fixed the location of the right-of-way by specific metes and bounds, and the owners of the dominant and servient estates were unable to agree on the way’s location, the Supreme Court remanded the ease to the chancellor to determine the exact location of plaintiffs way. In doing so, the Supreme Court expressly held that a part of defendant’s farm was excluded from the land available to the chancellor, on remand, for carving out plaintiffs right-of-way. Id. The excluded part is significantly pertinent to our inquiry.
Long before the conveyance to plaintiff, in or before 1852, the Rutland & Whitehall Railroad Company took a right-of-way 2,122 feet long and 66 feet wide across the farm. That right-of-way was assigned and transferred, the last assignment being in 1870 to the president and managers of the Delaware & Hudson Canal Company. According to the Supreme Court “[i]t further appeared that this railroad right of way, here called ‘D. & H. way,’ had not been used for railway tracks for at least 20 years at the time of the last hearing in this case, in October, 1919.” Id. The map of the property included in the court’s opinion clearly depicts each boundary of the railroad right-of-way, the location of the original tracks and the use to which the easement was being put at the time of the dispute over access to the plaintiffs property. In the center of the right-of-way is a line that is simultaneously labelled “D. & H. R.R. RIGHT OF WAY” and “OLD R.R. GRADE NOW USED FOR ROADWAY.” Id. at 893. The map thus shows that the grade of the right-of-way was used for a road. Although the opinion does not state explicitly that the rails had been removed at some time, I think it fair to assume that rails were actually removed, or removed de facto by their burial, in order to allow use of the grade as a road.
The Supreme Court stated Vermont law: that the D. & H. way could not be deemed abandoned (and thus available for routing of the plaintiffs uncharted way) in the mere lapse of time up to the date of plaintiffs deed. Since no facts in the case pointed to abandonment by D. & H. of its way, the Court held that “[t]he mere lapse of time and nonuser for railway tracks for the length of time shown by the record, prior to the date of plaintiffs deed, did not in themselves operate in law as an abandonment of the possession.” Id. at 894. The D. & H. way thus was reserved still to the railroad, and not available as “other lands of said grantor.”
Having so belabored the facts of Stevens v. MacRae,9 suffice it to say that actual or de facto removal of tracks, coupled with the long period of non-rail use, and with present use by someone as a road, was not deemed enough to find the D. & H. way abandoned. All that is missing from Stevens v. MacRae, to make it an “all fours” precedent in favor of the State, is the substitution of “removal of’ for “nonuser for” before “tracks” in the words just quoted from the court’s opinion.
I thus conclude that Vermont precedent denies the fact of track removal dispositive force in determining if abandonment has occurred. At the least, the pertinent precedent does not hold that removal proves abandonment: the Vermont courts have not decided that removal of tracks must prove abandonment.10 But even absent Stevens, the track removal in this case, in my view, does not provide the conclusive and unequivocal relinquishment signal required by Vermont law. The reason for which rails are removed is *1068relevant,11 and when a reason not necessarily consistent with abandonment is given, the reason must be carefully assessed. Here, the rails on the Preseaults’ property were special, known as “105-pound Dudley Section,” a comparatively rare type of rail used only on the New York Central System and lines, like the Rutland, that followed the New York Central engineering standards.
In preparation of the 1976 excursion season, trial inspections of the rails between Burlington and Rutland disclosed internal defects. The only readily available source of good quality “105-pound Dudley Section” rails was on the North Burlington line between mileposts 122.399 and 124.6875. The rails between mileposts approximately 123.9 and 124.053 were on the Preseaults’ property. The State and the railroad amended their track rehabilitation agreement to allow the railroad to make use of the Dudley Section rails for emergency repairs. All the Dudley section rails on the Preseaults’ property were removed, but the same kind of rails were left in place at milepost 123.342, quite near to the southern end of the Pre-seaults’ property at approximately milepost 123.9. Within one mile of the Preseaults’ property, the railroad continued active transportation service after 1975.
A full view of the 1975 facts shows removal of special tracks for less than a mile on the Preseaults’ property for emergency repair purposes, with the same special track at one end of the Preseaults’ property left in place, and with active rail service being continued over tracks lying within about a mile from the Preseaults’ property.12 The partial removal of the special track did not disturb the road bed and major improvements, which were left in place. In addition, the record shows that it would cost approximately $533,-000 to resume active rail service over the Preseaults’ property. The Court of Federal Claims did not analyze these additional facts in concluding that the track removal in 1975 necessarily proved abandonment of the easements. These circumstances of the track removal cannot be overlooked, however, and they raise serious question that any solid conclusive signal of permanent abandonment can be read into the bare fact that the tracks were removed.
The 1975 track removal also has to be considered in connection with certain pertinent uneontested facts also not considered by the Court of Federal Claims in its abandonment analysis. Certainly, these uncontested facts thoroughly blur any abandonment signal that might have been sent to the Pre-seaults by the removal of the tracks in 1975. In my view, these facts demonstrate conclusively that the State cannot be said, as a matter of law, to have extinguished the easements in 1975.
After partial removal of the tracks in 1975, and continuing through the present trail use, pre-existing license and crossing agreements in favor of the State and Vermont Railway have remained in effect. The State expressly retained its interest in those agreements *1069in the State-City-Railroad trail contract. Since the 1950’s the right-of-way has continually been the route of a major above-ground electric transmission line owned by the City of Burlington’s municipal electric department. This public use of the easement is authorized by a succession of standard license agreements between the City, Rutland Rahway, the State, and Vermont Rahway. Pursuant to such license and crossing agreements, the existence of which is not contested by the Preseaults, the State and the railroad collect rents or license fees. Even Mr. Preseault, as late as February 5, 1991, paid such a fee for his crossing at milepost 124.025, albeit under protest as to the enforceability of the license. A dominant tenement owner who continues to enforce licenses to use or to cross an easement can hardly be considered to have signalled abandonment of his easement.
Such is ah the more true in this ease, because additional rights are asserted by the State and the railroad regarding the allegedly abandoned easements. Shortly after removal of the tracks, the City of Burlington installed a sixteen inch water main in the ground of the easements. This was done pursuant to a contract between the City and Vermont Rahway entered into shortly before the tracks were removed, which granted the City a twenty foot right-of-way parallel to the road bed. Paragraph SIXTH of the contract relieved the railroad and the State of any liability should damage occur to the waterline “if the Railroad or the State Constructs [sic] tracks over all or a portion of the waterline.” The City agreed to pay $1116 per year for right to use the railroad’s right-of-way, and the contract expressly stated that the City obtained only a license thereby, not an estate or easement. The waterline contract, contemporaneous with the track removal, evidences the State’s right and interest in reestablishing active rail service over the easements, and even assigns responsibility for future events occurring during such rail service. This is a quite forceful eviden-tiary signal of nonabandonment.
The Court of Federal Claims failed to examine and assess the uncontested facts concerning the track removal and the existence and enforcement of the license and crossing agreements. These overlooked and undisputed facts compel the conclusion, as a matter of law, that the State’s intent to abandon the easement is at best equivocal or ambiguous, if not nonexistent. On these facts, Vermont as a matter of law has demonstrated that the removal of the tracks in 1975 does not spell extinguishment under Vermont law. Absent any other fact to prove abandonment, the Preseaults fail to meet their burden of proof to show that the State has conclusively and unequivocally manifested a present intent to relinquish the easements. Logue, Inc. v. Royea, 152 Vt. 499, 568 A.2d 357, 358 (1989). The easements were not abandoned in 1975.
The plurality judges recognize that the record contains undisputed facts that are inconsistent with the trial court’s determination that the easements were terminated in 1975 solely by removal of the tracks. Rather than give those undisputed facts their due under Vermont common law, as conclusive demonstration that no unequivocal signal of abandonment can be read into the track removal — and hence no abandonment in 1975— the plurality judges dismiss those facts as not “significantly” undercutting the trial court’s conclusion.
The plurality judges find compelling evidence of abandonment in the fact that the State made no effort to resume rail service over the easements after 1975. Inactivity on the easements, however, is utterly irrelevant to the issue of abandonment in Vermont, where an easement “cannot be extinguished by nonuse alone, no matter how long it continues.” Logue, 568 A.2d at 358.
The telling facts concerning the enforcement of crossing and license agreements both before and after removal of the tracks— which evidently cause concern for the plurality judges — are dismissed by them as incidents of either the “revenue collectors” failing to keep their records up to date, or of overreaching attempts to collect sums not due, or of persons, such as the Preseaults, more willing to pay rather than to fight. These explanations are pure speculations, at best. There is no support in the record for the inferences the plurality judges would *1070draw from the admitted facts of the enforcement of the crossing and license agreements. The 1985 assertion to the Interstate Commerce Commission only stated the fact that no traffic had moved over the tracks for two years and that no one had complained about the lack of active rail service over the tracks. The 30-year lease with the City of Burlington, as I have explained, is a five year lease renewable six times, cancelable by the State virtually at will, and it expressly states that the State reserves its rights to resume active rail service over the easement. This particular signal of nonabandonment is no more self-serving than the pre-existing crossing and license agreements which the State has continued to enforce after 1975. Finally, I note that the plurality judges simply dismiss, without discussion or analysis, the other undisputed facts pointing to nonabandonment which I have discussed in detail above.
The historic facts about the waterline license, for example, could be restated as follows. The railroad, while in the process of removing the tracks, was approached by the City of Burlington, which asked if the railroad would grant it a license for the waterline. If the railroad, by removing the tracks, was trying to send the unequivocal signal of abandonment, it would have replied, “Can’t you see, we are abandoning our easement by removing this track. If you want a license to use this land, go talk to the Preseaults, because they own the land in fee simple absolute now.” Instead, the railroad seems to have said, “Go talk to our lawyers, for if we re-lay the tracks and damage occurs to your pipe, you will have the responsibility for repairs.” Given this common sense explanation of the waterline license facts, I can understand why the plurality judges simply ignore the event: the urge to find a federal taking is simply overwhelming. The same explanation covers the willingness of the plurality judges to reach their goal, notwithstanding their tacit agreement with my criticism of the way the Court of Federal Claims read the pertinent Vermont case law.
Because the easements were not abandoned in 1975, they remained the property of the State, and the State remained free to make any lawful use of the easements that it saw fit. In 1982, the State legislature enacted a statute that specifically addressed the subject of abandoned railroad rights-of-way that the State owned. At the time of this enactment, the Preseaults were litigating a suit in the Vermont courts in which they sought a declaration that the easements had been terminated by the railroad’s removal of tracks and equipment. See Trustees of the Diocese of Vermont v. State, 145 Vt. 510, 496 A. 2d 151 (1985). The terms of the 1982 statute relate directly to the issue at hand in this case:
Notwithstanding the provisions of section 213 of Title 1 [against retroactivity, generally], when railroad operations cease on railroad rights-of-way owned by the state or municipality the title or interest held by the state or municipality in such rights-of-way shall be retained by the state or municipality for future transportation purposes and such other purposes as are not inconsistent with future transportation purposes; except that such rights-of-way shall not be used by members of the general public without permission of the state or municipality. The state or municipality shall allow abutting farm operations to use the land over which the rights-of-way pass for agricultural purposes.
1982 Vt. Acts No. 187 (emphasis added).
The provisions of section 213 of Title 1, to which the 1982 Act refers, specify that “Acts of the general assembly ... shall not affect a suit begun or pending at the time of their passage.” Thus, the general rule in Vermont that new statutes do not affect pending cases was expressly made not applicable to the 1982 statute, which compels the State to retain the easements that run over the Pre-seaults’ property. The Preseaults’ suit to declare that the easements were abandoned in 1975 was pending when the 1982 statute was enacted. Consequently, the easements over the Preseaults’ property are expressly subject to the 1982 Act.
B. The Question of Abandonment in 1985
The present trail over the Preseaults’ property was created in 1985. At that time, the easements were still alive in the hands of the State, both because state common law *1071provides that nonuse of an easement does not cause it to be extinguished, Lague, 568 A.2d at 358, and because the state legislature in 1982 required the State to retain the easements for future transportation uses and any other uses not inconsistent with such future transportation uses.
The remaining question before this court is whether the creation of the trail extinguished the easements, under Vermont law, and, thus, left the Preseaults in fee simple absolute possession of their property.
There are two answers to this question, one legislative and found in the 1982 Act, and the other judicial and found in the common law of Vermont. Because the legislative answer is simpler to explain, I will turn to it first.
The Legislative Answer
The text of the 1982 Act, set forth above, makes it certain that the State was compelled to retain the easements over the Pre-seaults’ property. The retroactive feature of the Act, making its terms specifically applicable to the easements in this case, can be read to mean that even the acts of the railroad in 1975 cannot be deemed acts of abandonment. We need not rely on such retroactive application of the statute, however, because it clearly applies to the easements in question, and declares the State’s duty to retain them after 1982. Thus, we need only to determine if the walking and bicycle trail is either a transportation use, or another use not inconsistent with future transportation uses.
I think it is unarguable that the current uses of the easements are within the uses specified in the 1982 Act. Use of the easements for the trail while holding them for future transportation uses, as the contract creating the trail expressly provides, satisfies the 1982 Act. Consequently, I must conclude that, pursuant to the 1982 Act, the easements survive in their current uses. As a matter of state legislation, the Preseaults have no present property interest on which to pitch a federal takings claim.
With regard to this legislative answer, one may fairly ask what we are to make of the state litigation in which the Preseaults sought a declaration that their easements had been terminated by the track removal. In that case, the Vermont Supreme Court concluded that it lacked jurisdiction to give the Preseaults the answer they sought, because federal law governs whether a railroad may abandon a railroad right-of-way. Federal law, however, does not preempt the issue of whether the state legislature can enact a measure which denies the State the power to abandon a railroad right-of-way that it owns. The Vermont Supreme Court had no occasion to measure the impact of the 1982 Act when it decided Trustees of the Diocese of Vermont v. State in 1985, because the ease did not involve an assertion by the State that the easements were preserved by the 1982 Act. The State’s argument in that case was that railroad rights-of-way could not be abandoned without the consent of the federal government, a proposition seemingly uncon-testable at the time. The short of the matter is that the Trustees of the Diocese of Vermont case has no bearing on the issue now before this court, and is harmonious with the conclusion that the state legislature preserved the easements in 1982 for their current uses.
In sum, the legislative answer requires us to make no predictions about how a Vermont court would rule today. The terms of the statute are unmistakenly clear, and the conclusion reached from them is unescapable.
The Common Law Answer
The common law answer is more complicated, because it requires us first to assess the scope of the shifting use doctrine in Vermont’s law of property, and then to apply that doctrine to the undisputed facts of this case. In the end, the common law answer requires us to make a prediction as to how the Vermont Supreme Court today would apply its shifting use doctrine to this case. Our task in this regard is not to vote our individual consciences or preferences, but instead to make the most we can of extant Vermont law and to follow whatever direction we can derive from Vermont’s judicial precedents.
*1072Vermont’s Shifting Public Use Doctrine
As the Court of Federal Claims noted, the shifting public use doctrine is longstanding and recognized by leading railroad law scholars, including Edward L. Pierce and Chief Justice I.F. Redfield (of Vermont). See Pre-seault, 24 Cl.Ct. at 832-33 (citing Edward L. Pierce, Treatise on the Law of Railroads 233-34 (1881) and I.F. Redfield, The Law of Railways 269 (6th ed. 1888)).13
Chief Justice Redfield’s treatise — particularly the 1888 edition that is close in time to RCRC’s 1899 condemnation of the Barker Estate easement — elaborates upon the shifting public use doctrine. Discussing the question whether the owner of the fee underlying a street or canal must be compensated when a railroad is constructed over the street or canal, the treatise explains that
The mere possibility of reverter to the original owner, or his heirs or grantees, is not regarded ... as any appreciable interest requiring to be compensated..... The most the owner of the fee could claim in such case is to recover compensation for any additional land taken, and for any additional burden imposed upon the land appropriated [above and beyond that imposed by the original highway use], as well as for any additional damage to the adjoining lands of the same owner.
I.F. Redfield, The Law of Railways 269 (6th ed. 1888).
Edward L. Pierce’s treatise contains a more lengthy discussion of the principle:
The property [taken for the purposes of a railroad] is ... to be deemed taken for a public use itself, rather than for the peculiar use and enjoyment of the party to whose position it passes. It does not therefore revert to the owner upon a mere transfer of the railroad to another company, nor upon its appropriation to another similar public use.
Edward L. Pierce, Treatise on the Law of Railroads 158 (1881) (emphasis added). Pierce goes on the explain that
[w]hen property has been taken for a public use, and full compensation made for the fee or a perpetual easement, its subsequent appropriation to another public use — certainly if one of like kind — does not require further compensation to the own-er____ There is no change of use involving a new taking when, under legislative authority, the location of a plank-road or canal is converted into that of a highway, or a railroad.
Id. at 233 (citing Brainard v. Missisquoi R.R. Co., 48 Vt. 107 (1874)).
The proposition in Vermont law that railway use of an easement is a public use thus is hardly exceptional. With specific reference to the condemnation of private lands to create easements for rail use, the Supreme Court of Vermont quite early on held “that a rail road is an improved highway, and that property, taken for its use by authority of the legislature, is property taken fpr the public use, as much as if taken for any other highway____” White River Turnpike Co. v. Vermont Central Rail Road Co., 21 Vt. 590, 594 (1849). White River is not an isolated example of the Vermont Supreme Court characterizing the railroad corridor as a public highway burdened with a public trust. A similar view was expressed when the court upheld the constitutionality of a statute protecting rail corridors from adverse possession: “The exception is not a grant of a privilege to a private corporation, but an exception of land set apart for a public use____” Drouin v. Boston & M.R. Co., 74 Vt. 343, 52 A. 957, 959-60 (1902) (citations omitted). In the same vein, a few years later the court stated in Osgood v. Central Vermont R. Co., 77 Vt. 334, 60 A. 137 (1905), that:
A railroad corporation holds its station, grounds, railroad tracks, and right of way for the public use for which it is incorporated, yet as its private property, and to be *1073occupied by itself or by others in the manner that it may consider best fitted to promote or not to interfere with the public use.
Id., 60 A. at 140.
Early Vermont Supreme Court cases recognize and enforce the shifting public use doctrine. In West v. Bancroft, 32 Vt. 367 (1859), which may be the first of such cases, a municipality maintained a public highway on an easement across the plaintiffs property. The municipality built a reservoir, or cistern, on the easement, to conserve and use water for public purposes, including the sprinkling of streets. The owner of the reversionary right in the land under the highway brought suit in trespass. The jury returned a verdict of not guilty for the defendant. On appeal, the Supreme Court, per Pierpoint, J., after approving the jury charge, stated that the “only remaining question is as to the right for the public to put a reservoir, or cistern, into the earth, within the limits of the highway, for the purpose of retaining water____” Id. at 370. In language fairly described as expansive, the court answered its question, at length:
The power of the public over highways is not confined to their use for the sole purpose of travel. Many things may be done therein for the promotion of the public convenience and health, such as laying water pipes, constructing drains and sewers, making reservoirs, and many other acts which the public may require; and when these acts are done by the public authorities in a judicious manner and with proper care, having reference to the rights of adjoining proprietors, and the owners of the fee of the land, if such proprietors are incidentally affected injuriously thereby, or the owner of the fee sustains a technical damage, the law furnishes no remedy therefor.
But in this case it is not necessary to resort to this principle, even to justify the acts of the defendant. It is conceded that this reservoir was built by the defendant as a public officer, having charge of such matters, and in the discharge of his official duty; that the object was to retain water to be used in sprinkling the streets, and for other public purposes. This, we think, clearly comes within the object and purpose for which the highway was originally laid out.
All those acts which tend to facilitate travel, and add to the ease, comfort and convenience of the traveler, or his beasts, whether it be by cutting down the hills, filling the ravines, paving the roads, erecting watering troughs, or sprinkling the streets, are acts which it is proper and often necessary for the public to do.
Id. at 371.
A few years later, the Supreme Court of Vermont revisited the public use doctrine in Brainard v. Missisquoi R.R. Co., 48 Vt. 107 (1874). In that case, a railroad was the successor-in-interest to a plank road company, which had built and maintained a public plank road on an easement over the plaintiffs property. When the railroad removed the plank road and replaced it with an operating railroad over the easement, the plaintiff sought compensation for the railroad’s actions. The plaintiff contended that upon removal of the plank road, the easement originally created for the plank road was annihilated.14 The plaintiffs case thus rested on the alleged abandonment of the plank road easement, and the creation on his land of a new rail easement for which he, as the fee owner, was owed compensation. The railroad countered that the “easement was not destroyed____ The public still have the benefit of its use. It has never ceased or been destroyed. It was only changed in the manner of its use by the public.” Id. at 110. The court summarily rejected the plaintiffs theory, holding that the removal of the plank road had not abandoned the easement and that the railroad could maintain the different public use without compensation to the plaintiff landowner. Id. at 113-15.
While West and Brainard remain as the principal statements by the Supreme Court *1074of Vermont of its doctrine of shifting public use, other Vermont cases and authority recognize the doctrine’s viability. See Connecticut & Passumpsic Rivers Railroad Co. v. Holton, 32 Vt. 43, 47 (1859) (railroad “may do any act upon the land conducive to those public uses for which their charter was granted____”); Rutland R. Co. v. Chaffee, 71 Vt. 84, 42 A. 984, 986 (1899) (land leased by railroad remains in railroad’s constructive possession); Cobb v. Western Union Tel. Co., 90 Vt. 342, 98 A. 758, 760 (1916) (permitting joint use of railroad right-of-way by railroad and telegraph company); 1937-38 Biennial Report of the Vermont Attorney General 272, 273 (July 28, 1937) (state may locate its highway over former railroad right-of-way without payment of compensation); City of Montpelier v. Bennett, 119 Vt. 228, 125 A.2d 779, 785 (1956) (highway use continues when section of highway bypassed for through traffic is kept open for parking and off-highway use) (dictum).15
I am thus confident that Vermont embraces the shifting public use doctrine, and that the Supreme Court of Vermont has consistently afforded the doetrine a generous reach in order to determine if a use for an easement not originally contemplated can proceed lawfully as a matter of state property law.
Application of the Shifting Public Use Doctrine to this Case
In 1985, the State, as owner of the Vermont Railway, Inc., and thus of the easements, put the easements to dual uses: rail-banking and, pending the railbanking, a public walking and bicycle trail. The Court of Federal Claims did not decide if either or both of these two uses terminated the easements under Vermont law because it had concluded, erroneously, that the easements had been terminated in 1975. We must, then, consider the state common law implications of the 1985 uses.
By 1985, the concept of railbanking was firmly established in Vermont. Indeed, in 1963, in the statute pursuant to which the State acquired Vermont Railway, Inc., the concept was seeded by the provision that authorized use of the easements for “the continued operation of a railroad, or other public purpose____” 1963 Vt. Acts No. 162, § 4. In 1982, the concept received full legislative dress in 1982 Vt. Acts No. 187, § 1, which declared that state-owned unused rail corridors must be retained for future transportation purposes. This statute, discussed at length above as the keystone to the legislative answer, thus plays an important role in the common law answer, as well.
When the State, railroad and City of Burlington entered their contract in 1985, the State’s paramount interest was in preserving the rail corridor over the Preseaults’ land for future rail use. The contract on its face reflects that interest, in that the State reserved its right to regain possession of the easement to use it for rail purposes, and the City became obligated to do nothing that would interfere with achievement of that goal. The City, on the other hand, no doubt had a lesser interest in maintenance of the rail corridor for future rail use. For it, the immediate interest at hand was to provide a recreational trail for public use.
The Preseaults argue that the original easements were granted for railroad purposes only, and that “railroad purposes” means the active running of trains over the easements, even though they recognize that Vermont law treats rail easements as a form *1075of public highway. In connection with this argument, they vigorously contend that rail-banking is not a railroad use. With respect to the trail use of the easements, the Pre-seaults argue that recreational trail use is so far removed from the rail use that the new use should be deemed inconsistent with and beyond the scope of the original easements. As for the railbanking and trail uses, the Preseaults contend, as did the plaintiffs in the landmark Bminard case, that the rights of the State in the original easements have been “annihilated”.
In this case, neither the warranty deed from the Manwell’s nor the commissioners’ award of title to the railroad (after its condemnation of the Barker Estate property) expressly limit the use of the easements by the railroad to the running of trains over the easements, or suggest any term for the easement other than perpetuity for authorized use. The Manwell Deed contains no reference at all to any particular use for the easement thereby granted; it simply conveys the interest to the railroad for its “proper use, benefit and behoof forever.” The first “whereas” clause of the commissioners’ award recites that the condemnor “for the purposes of its railroad has located, entered upon and occupied lands owned by Charles C. Barker, Administrator of the Estate of William H.M. Barker.” To be sure, the original easements were by their terms to be used for proper purposes by their owner. At that time, we may assume that only active railroad use was contemplated for the easements. Vermont case law teaches us that railroads may change their minds about uses for easements, either by failing to pay for the interest, see Stacey v. Vermont Central Railroad Co., 27 Vt. 39 (1854), or by converts ing the right of way to a roadway, see Stevens v. MacRae, 97 Vt. 76,122 A. 892 (1923). The plain meaning of the title documents, however, does not dedicate the easements solely to the running of trains, or specify that the easements will terminate if not used for running trains. This is important, because common law cases recognize that carefully restricted uses of easements can dictate conclusions as to abandonment. See, e.g., Minnkota Power Co-op., Inc. v. Lake Shure Properties, 295 N.W.2d 122, 127 (N.D.1980) (“At the time the easements were granted the Landowners could have made reservations regarding the capacity of the line or its voltage. No such reservations were made.”); Knox v. Pioneer Natural Gas Co., 321 S.W.2d 596, 601 (Tex.Civ.App.1959) (noting that servient owner failed to restrict use of pipeline easement). Common law cases also recognize, equally importantly, that, when interpreting the scope of an easement it “will be inferred, in the absence of express language to the contrary, that the grantee is not restricted to the methods of use which were current at the time of the grant.” Lawson v. State, 107 Wash.2d 444, 730 P.2d 1308, 1312 (1986) (citing cases).
That the original easements in this ease were not solely for the purposes of running trains over them is confirmed by meshing the terms of the property grants with the powers enjoyed by the original railroad at the time the easements were created. The easements, I have noted, were for “purposes of its railroad” (Barker), and for the railroad’s “proper use, benefit and behoof forever” (Manwell). The acquiring railroad’s charter did not limit its business to the running of trains, or even to the railroad business. Instead, the state legislature gave the acquiring railroad all the “powers, rights, privileges and franchises” enjoyed by railroads and other corporations in the state. Consequently, the original easements could by their explicit terms be used for any purpose legitimately undertaken by the railroad.
The documents which created the easements in suit thus do not limit use of the easements to the running of trains, as the Preseaults argue. The correct reading of the documents results in limiting the scope of the easements, at their narrowest, to whatever proper use a railroad would make of them.
The plurality judges do not dispute that the terms of the easements themselves, that is, the language in the Manwell Deed and in the commissioner’s award, fail to specify any particular use to which the easements must be put.16 They correctly recognize that de*1076termination of the proper scope of the easements is aided by reference to the corporate powers given to the railroad in its legislative charter. The plurality judges, however, read the legislative charter to specify only the powers given by “general law to railroad companies.” As I have noted, the grant of corporate powers to the railroad is much broader, and includes all powers enjoyed by other, nonrailroad corporations in the state. This broad scope of authority informs the scope of the easements. Even at the time of the easements’ creation, history teaches that railroads were in the process of building hotels along and near their lines, and, as early as the 1930’s, the Union Pacific Railroad used its powers to create the Sun Valley ski resort as a recreational facility. Although no legislative history survives to prove that the Vermont legislature had such nonrail activities in mind for the Rutland-Canadian Railroad, it is certain that the legislative charter is broad enough to permit such activity by that railroad. But we need not rely on such broader powers of railroads, or the lack of limitation to rail uses in the conveyances, because the statutorily mandated rail banking is a rail use, and the trail use is fully authorized by state statute.
As I noted above, the primary interest of the State and the Vermont Railway, Inc., is to preserve the easements for future rail use. The contract with the City of Burlington, which lets it use the easements as a bicycle and walking trail, produces only a small income to the State, and the State and Vermont Railway have carefully reserved the right to terminate the contract quickly should the easements be withdrawn from the railbank for active use. The railbanking use of the easements is of a like kind to the easements being left in nonuse, an event that would not extinguish an easement in Vermont. Actually, railbanking is different in that nonuse connotes no purpose for the idleness of the right-of-way, whereas rail-banking carries with it the expectation of future active rail use. Thus, the Preseaults’ argument that railbanking is not a rail use must fail: whether viewed as an active rail use of a railroad easement for railbanking purposes, or simply as nonuse of an easement, under Vermont law such facts cannot extinguish these easements. Validation of the railbanking use of the easements requires no resort to the shifting public use doctrine, since the current use is within any “railroad purpose” scope of the original easements, and would be preserved during unlimited times of nonuse.
The question remains, however, whether the secondary use to which the easements have been put — the public walking and bicycle trail — is permissible under state common law. In this instance, the shifting public use doctrine is useful, once the nature of the new use is appreciated.
The bicycle and walking trail is admittedly a form of public highway, because it permits travel by the public along the trail. Walking, bicycling, and railroading represent different means of transportation, and to be sure, most of the use of the trail is no doubt for recreational purposes, whereas one might expect a lesser volume of recreational use of an active rail line.
Use of the easements for the present trail does not burden the servient tenements more than their use by the railroad for active commercial freight transportation, or for storage of idle rolling stock. The plurality judges’ arguments to the contrary are uncon-*1077vineing.17 They seem to view active rail service as governed by tight time-tables which would warn the owner of the servient estate of the “occasional” times when he may be disturbed by the use of the easements. No facts in the record support such assertions, or permit any inferences therefrom. Indeed, judicial notice would include knowledge that freight trains run intermittently at night, causing severe vibrations and ensuing damage to structures located as close to the right-of-way as the buildings on the Pre-seaults’ property. Similarly, we could not close our eyes to the burdens associated with empty rail yards: they are collection points for vagrants and pests, hardly the environment one would choose for one’s backyard.18 Such are the very conditions to which the Preseaults were lawfully exposed when the easements were used for railroad purposes. In addition, I cannot agree with the plurality judges’ suggestion that the Preseaults are in greater threat of personal physical danger when bicycles, instead of railroad trains, cross their property.
The key point, however, is that both the trail use and the rail use involve a public way. Vermont courts have long viewed a railroad as an improved highway, see, e.g., Armington v. Town of Barnet, 15 Vt. 745, 750 (1843) (Redfield, J.), and I think the Supreme Court of Vermont would allow a railroad to convert an unused rail easement to other forms of transportation, even were the easement not simultaneously being used for an unquestionably valid rail purpose, as is the case here.
I reach my conclusion comfortably in the light of the expansive shifting public use doctrine in Vermont. In the celebrated Bramará case, the Vermont Supreme Court found the shift from a plank road to a railroad authorized under the plank road easement, without even a word of caution or concern that a fundamental shift of use had occurred. Instead, the court focussed on the question of whether — beyond the shifted use — the new use imposed a greater burden on the servient estate so as to warrant additional compensation for the new use. In that case, the court held that the landowner’s property was not subject to greater burdens by the new use. That particular focus is not present in this case, because the Preseaults do not seek additional compensation for a greater burden on their tenement. They instead claim that the dominant tenement has been abandoned, and that they are thus entitled to full occupation of their land.
To counter the thrust of Brainard and Vermont’s shifting public use doctrine generally, the Preseaults argue that a highway easement (such as that for a plank road) insofar as it is a general purpose public transportation easement can be converted to railroad use, without destruction of the highway easement, but that an easement for railroad purposes is limited to railroad use only and cannot be assigned a public transportation use as a walking and bicycle trail.19 As support for that proposition, the Preseaults cite Lawson v. State, 107 Wash.2d 444, 730 P.2d 1308 (1986), in which the Washington Supreme Court held that a rail easement was extinguished by use as a hiking and bicycle trail. In Lawson, the Supreme Court of Washington, over a dissenting opinion by Justice Utter, applied a narrow view of the shifting public use doctrine in holding that conversion from a “public transportation system to a recreational system” extinguishes the pre-existing rail easement. The court seems to have compared rail use by a private corporation, for commercial gain, to what it *1078saw as recreational use.20 Although Lawson is distinguishable on its facts from this case,21 it does support the Preseaults’ challenge to the trail use if the shift to primarily recreational use is determinative, the issue which Justice Utter neatly framed:
As “a public highway, created for public purposes” ... railroads have been used to haul freight and transport travellers bent on business or social purposes. Those purposes were often realized in the course of transit, as well as after passengers debarked. The meeting in the club car, the vacation spent sightseeing from a Domeliner, as well as local tourist and commuter trains evidence the diversity of legitimate “transportation purposes.”____
My point in this comparison is to underscore the insignificance of the difference in transportation media. Just as with a railroad line, the maintenance of a trail is to furnish transportation. In broad terms, the variety of purposes individuals may have for seeking transportation remains relatively constant regardless of the medium chosen. While the mix of purposes may change in time, that is consistent with the evolution of society and the related use of the easement itself.
Id., 730 P.2d at 1320 (Utter, J., dissenting).
I do not think the decision in Lawson would be followed by the Supreme Court of Vermont to find the trail use of the easements required their extinguishment. Rather, because of its own longstanding and broad shifting public use doctrine, I think that it would look away from Lawson and instead to Washington Wildlife Preservation, Inc., v. State, 329 N.W.2d 543 (Minn.), cert. denied, 463 U.S. 1209, 103 S.Ct. 3540, 77 L.Ed.2d 1390 (1983).
The plurality judges’ emphasis on Lawson as the leading decision on this topic, and their characterization of Washington Wildlife as “of little persuasive authority,” is incorrect, as is their contention that “most” state courts which have adjudicated shifting uses have found the easements terminated by their shifted uses. By my count, there are five state eases holding the shift in use does not terminate the easements, and three cases that exist to support the plurality judges’ “most” claim. Compare, Washington Wildlife Preservation, Inc. v. State, supra; Barney v. Burlington Northern RR Co., 490 N.W.2d 726 (S.D.1992); Rieger v. Penn Central Corp., 1985 WL 7919 (Ohio App. May 21, 1985); Bernards v. Link, 199 Or. 579, 248 P.2d 341 (1952); and Faus v. City of Los Angeles, 67 Cal.2d 350, 62 Cal.Rptr. 193, 431 P.2d 849 (1967), all permitting new use of easements, with Schnabel v. County of Du-Page, 101 Ill.App.3d 553, 57 Ill.Dec. 121, 428 N.E.2d 671 (1981); Pollnow v. Wisconsin, 88 Wis.2d 350, 276 N.W.2d 738 (1979); and Lawson v. State, supra, aU precluding new use of easement. Thus, one should not elevate Lawson, as the plurality judges do, whüe denigrating Washington Wildlife. The only reasonable conclusion to be drawn from these cases is that the state courts facing the question we must decide have split about evenly, and that the only responsible course for us is to determine which of the two admittedly leading cases — Washington Wildlife and Lawson — the Supreme Court of Vermont would most likely foUow.22
*1079The court in Washington Wildlife cited and relied on Minnesota’s traditional generous view of the shifting public use doctrine: “the mode of exercising [the public] easement is expansive,- developing and growing as civilization advances.” Id. at 546. In language that sounds much like an echo of the Vermont Supreme Court’s 1859 decision in West v. Bancroft, the court noted that “[i]t has long been held that the holder of an easement is not limited to the particular method of use in vogue when the easement was acquired, and that other methods of use in aid of the general purpose for which the easement was acquired are permissible.” Id. Quoting from an 1895 case that it had approved in 1981, the Minnesota Supreme Court said that “it has become settled law that the easement is not limited to the particular methods of use in vogue when the easement was acquired, but includes all new and improved methods, the utility and general convenience of which may afterwards be discovered and developed in aid of the general purpose for which highways are designed.” Id. at 547. The court also noted that the trail would be used for transportation, albeit recreational transportation:
The right-of-way in this case will be used by hikers, bikers, cross-country skiers and horseback riders. The right-of-way is still being used as a railroad right-of-way for transportation even though abandoned as a railroad right-of-way. Recreational trail use of the land is compatible and consistent with its prior use as a rail line, and imposes no greater burden on the servient estates. The use is a public use, which is consistent with the purpose for which the easement was originally acquired. State and federal statutes encouraging the conversion of railroad rights-of-way to recreation trails also support our holding.
Id.
The issue of trail use of the easement is unique in this court. Here, the State owns a railroad for which it has reserved the right to resume active service over the easements which the state legislature has expressly preserved. In the meantime, the State is obligated to use the easement for future rail line inventory, and is authorized to allow interim use as a bicycle and walking trail. The State has not manifested “either a present intent to relinquish the easement or a purpose inconsistent with its future existence.” Nelson v. Bacon, 113 Vt. 161, 32 A2d 140, 146 (1943). Under my interpretation of the easement in question under the law of Vermont, for the reasons set forth above, the State’s easements are not extinguished because of their current uses. At the present time, the State continues to enjoy ownership of the dominant tenements in the easements that cross the Preseaults’ property. This is so as a matter of state statute and, alternatively, state common law on easements.
VI
As a final explanatory matter, I should note that the role of the United States in the creation of the trail does not override the state action which perpetuated the easements. It is true that easements cannot be abandoned without the consent of the federal government. Thus, Vermont alone could not have deemed the easements terminated in order to use them for the trail. Instead, Vermont sought to keep the easements alive, to prevent their abandonment, in pursuit of state policies which mirror the federal policy in favor of perpetuating old rail easements. This is not a case in which the federal government is actively involved, by way of selecting a particular easement for preservation, or by imposing a federal system of land use regulation on a state that has no rail-*1080banking system of its own. Whether such federal involvement in another case would give rise to federal liability under the Fifth Amendment is not a matter upon which we should speculate or comment. Nor is this a case such as Hendler v. United States, 952 F.2d 1364 (Fed.Cir.1991), in which we held the United States liable for a taking of property as a result of its cooperative work with a state environmental agency which entered upon and occupied the Hendler’s fee simple absolute property. In Hendler, no governmental agency had any property right in the premises, owned wholly by the Hendlers, upon which the defendants drilled wells. There was a clear occupation by the government of privately owned property. In this case, the property which is now occupied by the trail is owned by the State. The State can make any lawful use of the property that it wishes. The current uses are lawful. The Preseaults have no right to preclude the State from its occupation of the easements. That the United States has consented to the lawful occupation by the State of its own property does not bring this case under the holding in Hendler.
Suffice it to say that this particular case is limited to its facts, and to the impact of Vermont law as I read it.
VII
Since I have concluded that the State has not abandoned its easements, the Preseaults can only show ownership of the servient tenements. No argument has been made that the current use of the easements imposes a greater burden on the servient tenement than would be imposed were the State to use the easements for railroad purposes. Also, no other argument has been made that would afford the Preseaults standing to maintain their takings complaint in the Court of Federal Claims at this time. Consequently, the decision granting the Preseaults’ partial summary judgment motion against the State should be reversed and the case remanded to the Court of Federal Claims, with the instructions to grant the cross motion for summary judgment of the State and dismiss the Preseaults’ complaint for failure to state a claim upon which relief can be granted. The second decision by the Court of Federal Claims granting summary judgment for the United States should be vacated as moot.
For these reasons, I respectfully dissent from the court’s holding, without a majority supporting opinion, that the Preseaults are entitled to compensation from the United States.
. The Preseaults’ complaint alleges a taking by the United States "by operation of the Rails-to-Trails provision of the National Trails System Act Amendments of 1983, 16 U.S.C. § 1247(d), Pub.L. 98-11.” Consistent with that statute, the State, Vermont Raüway, Inc., and the City of Burlington (City), with the approval of the Interstate Commerce Commission, entered into a lease in 1985 for the interim use of the railroad right-of-way by the City as a recreational walking and bicycle path. The contract runs for 5 years, renewable in 5 year periods, up to a maximum of 30 years. The contract specifically prohibits major alterations to the railroad grade, and contains a special termination clause allowing the State to terminate the lease, relay tracks and resume rail operations over all or part of leased premises, on six months notice. The contract also states that the property leased by the State to the City is subject to a number of utílüy and crossing agreements, which continue to run in the State's favor during the life of the contract. The City pays a token "rent” of one dollar every five years.
The alleged taking is said to arise from the role of the federal government in the conversion of the right-of-way. Although the State has adopted laws allowing for such conversion, see 1982 Vt. Acts No. 187 (requiring the state to retain interests in state-owned rights-of-way, upon cessation of active rail service, for future transportation uses and such other purposes not inconsistent therewith) and 1988 Vt. Acts No. 211 (specifically identifying the property at issue in this case as qualifying for such use), no claim is made in this case that the State is hable to the Preseaults for a taking of their property. Cf. Lawson v. State, 107 Wash.2d 444, 730 P.2d 1308, 1315-16 (1986) (state statute authorizing change in public use of railroad right-of-way to a different public use without payment of compensation is unconstitutional under art. 1, § 16 of state constitution).
. In Barney v. Burlington Northern Railroad Co., Inc., 490 N.W.2d 726 (S.D.1992), cert. denied, 507 U.S. 914, 113 S.Ct. 1265, 122 L.Ed.2d 661 (1993), the railroad donated its right-of-way to the state, which converted the right-of-way to a public recreational trail. The Supreme Court of South Dakota held that the interest of the landowners, who bought their land subject to the easement, was not "diminished by converting the right-of-way to a public recreational trail. The Landowners' reversionary rights will not mature until the right-of-way ceases to be used as a public highway.” Id. at 733.
. The act which incorporated the RCRC gave it the "powers, rights, privileges and franchises incident to railroad companies and other corporations”, 1898 Vt. Acts No. 160, § 1, and stated in section 9 that "[t]he corporation hereby created shall enjoy all powers, rights, privileges, and franchises, conferred upon or vested in railroad companies or corporations, and other corporations, by the general laws of this state____" Id. § 9. The Vermont legislature was thus forward-looking in granting broad corporate powers to the railroad, instead of confining it only to operation of rail services.
By 1898, it was settled Law in Vermont that a state-charted railroad could acquire rights-of-way by eminent domain, see White River Turnpike Co. v. Vermont Central R.R. Co., 21 Vt. 590 (1849), and that a railroad could acquire a plank road company and convert an easement for a plank road into a rail track easement, without paying the grantor of the plank road easement *1062additional compensation. See Brainard v. Mis-sisquoi R.R. Co., 48 Vt. 107 (1874).
. An easement can also be extinguished in Vermont by open, notorious, hostile and continued adverse possession by the owner of the servient tenement for the statutory period of 15 years. Scampini v. Rizzi, 106 Vt. 281, 172 A. 619, 621 (1934). No claim of adverse possession by the Preseaults of the State's easements is made in this case. Nor would such a claim lie in Vermont, which by statute protects railroad rights-of-way against inadvertent loss from adverse use. See Vt. Stat. Ann. tit. 30, § 705 (1986).
. There are no disputed facts. The parties were given full opportunity to submit findings of fact. After exchange of proposed findings of fact, the parties agreed that no facts remained to be found, and each side agreed that the other had stated its facts correctly. The parties submitted the uncontested facts for resolution by summaty judgment. No issue is raised on appeal of the propriety of disposition of the case by summaty judgment. The state law property issues were fully briefed and argued in this court. No parly has suggested the need for any further fact submissions.
No facts were found by the Court of Federal Claims, and we need not defer under the clear error standard to the decision on whether the facts here add up to extinguishment of the easements. Even if Vermont's labeling of abandonment as a fact issue somehow demanded a measure of deference in review of the appealed *1065decision, we would reverse that decision if this "court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). For the reasons set forth below, we would be required to reverse even on the deferential standard of review.
. In other states, it seems that nonuse may be a factor that can lead to the conclusion of abandonment. See, e.g., Schnabel v. County of Du-Page, 101 Ill.App.3d 553, 57 Ill.Dec. 121, 126-27, 428 N.E.2d 671, 676-77 (1981).
. Until 1989, the law of Vermont on abandonment required, in addition to the affirmative conduct of the owner of the dominant tenement signalling unambiguous intent to abandon, that the owner of the servient tenement prove that he had relied to his detriment on the signal sent by the conduct of the dominant tenement owner. In Lague, the Supreme Court disavowed the reliance portion of its abandonment doctrine, while reemphasizing the heavy burden carried by one seeking to establish annihilation of an easement. Lague, 568 A.2d at 359.
. Reliance by the Court of Federal Claims on Proctor v. Central Vermont Public Serv. Corp., 116 Vt. 431, 77 A.2d 828 (1951), and Timney v. Wor-den, 138 Vt. 444, 417 A.2d 923 (1980), overruled on other grounds by Lague, Inc. v. Royea, 152 Vt. 499, 568 A.2d 357 (1989), to show that removal of tracks spells abandonment, is also misplaced, because those cases do not consider the legal effect of removal of tracks on the question of abandonment of rail easements. Proctor, in short, did not adjudicate the question of abandonment of a rail right-of-way. Instead, the question was whether an electric utility easement granted by a railroad to run over its easement was extinguished by the admitted extinguishment of the rail easement. The electric easement was held to be within the scope of the original rail easement, and thus not abandoned by the extin-guishment of the rail easement. Timney deals with the extinguishment of an easement by adverse possession. In that case, the owner of the servient tenement dug a cellar hole and then built, right over the alleged easement, a house on the cellar, which had stood for the requisite 15 year statutory period necessary to prove an easement by prescription in Vermont. The Supreme Court of Vermont held that the hostile, open and notorious adverse use for the requisite time extinguished the alleged easement.
. Compare the cursory treatment by the plurality judges of the facts in Stevens v. MacRae.
. I do not read Proctor v. Central Vt. Public Serv. Corp., 116 Vt. 431, 77 A.2d 828 (1951), to the contrary. In the first place, the abandonment of the rail line after 23 years of removed tracks and 25 years of nonuse for any rail puipose was not contested. Abandonment of the rail easement was not an issue in the case; whether the overlying electric easement survived the extinguishment of the rail easement was the only question before the court. At most, Proctor can be read to mean that removal of tracks is pertinent to the ultimate question of extinguishment of a rail easement. Proctor does not stand for the proposition that removal of tracks alone is always enough to prove abandonment.
. Preseaults' counsel, in the following colloquy with the court at oral argument on the summary judgment motion, agreed that the reasons for removal of the tracks could be relevant to the issue of abandonment.
THE COURT: What do you do about the situation where a railroad needs to pull up its tracks for emergency repairs?
MR. HANIFIN: Well, if there is a plan to pull up the tracks and put new tracks down, sure that would not amount to an abandonment. I think that would be a reasonable exception, if you will, or a reasonable situation where, for instance, in the tracks — for instance, they replace — use this track to replace some other track. Presumably, at that other place for a while, there were no tracks while they ripped up the defective ones and put new down.
. During the oral argument on the summary judgment on state law issues before the Court of Federal Claims, the placement of the trail next to the rails was described by the government’s counsel:
Little over a mile away, the railroad is still thriving; there is a track yard. And at that point, which is approximately one — little over a mile, one mile and a third south of the parcels in question, there is rail still in, the train is going up and down and next to it is the trail. The existence of the trail and the operation of a railroad, contrary to Plaintiff's suggestion, is not inconsistent. They are, in fact, at the present time occurring.
In fact, the State-City-Railroad contract creating the interim trail contemplates active rail service alongside the trail, and burdens the City with the responsibility to keep the track free of debris and obstructions.
. I must disagree with the plurality judges’ suggestion that the shifting public use doctrine may not exist at all in Vermont. The opinion of the Court of Federal Claims goes to some length to demonstrate the validity of the doctrine in Vermont law, as do the litigants, none of which suggest in any way that the doctrine can be avoided if the easements were not terminated in 1975. Indeed, the trial judge even expressed her view that had there been no abandonment in 1975, the easements "possibly" could have survived under their current uses.
. In addition, the plaintiff argued that even if rail use of the plank road easement were authorized under the terms of the original easement, the plaintiff was still harmed by a greater burden put on the servient tenement by the rañ use. The Supreme Court rejected that contention.
. With respect to navigable waterways, which Vermont law considers capable for use for common passage as highways, see State v. Malm-quist, 114 Vt. 96, 40 A.2d 534, 538 (1944), Vermont embraces the public trust doctrine, which restricts private use of public waterways. While not directly relevant to the question of conversion of a railroad easement to a different public transportation use, the generous expression of the public trust doctrine by the Vermont Supreme Court provides an insight into the manner in which the court approaches issues of public use:
The doctrine is not fixed or static, but one to be molded and extended to meet changing conditions and needs of the public it was created to benefit. The vety purposes of the public trust have 'evolved in tandem with the changing public perception of the values and uses of waterways.'
State v. Central Vermont Railway, Inc., 153 Vt. 337, 571 A.2d 1128, 1130 (1989) (citations and internal quotation marks omitted), cert. denied, 495 U.S. 931, 110 S.Ct. 2171, 109 L.Ed.2d 501 (1990).
. One cannot argue that the easements in this case were granted solely for the express purpose of running railroad trains over them. In order for an easement to be limited to such express *1076terms, the language of the easements must so specify and limit the uses.
Had the easements in this case been so expressly limited, then their use for any other purpose would extinguish them under Vermont law. Lague, 568 A.2d at 359. See Thompson on Real Property (§ 60.04(a)(l)(iii) "Increasing the Frequency or changing the Type of Use of the Ser-vient Tenement” ("If the grant states a specific purpose for the easement, courts are usually chary about expanding that use.”)) (Thomas Ed.)
When easements are not for express use purposes, and instead are for whatever proper purpose the owner wishes to put them to, the “general rule” cited by the plurality judges— permitting the scope of an easement to be adjusted -in the face of changing times — applies. Since the original easements are not restricted just to running trains over them, the difference between the plurality judges and me is over the extent to which the easements can be put to new uses.
. I assume that the plurality judges’ attempt to claim a greater burden on the servient tenement from the trail is in hopes of connecting the argument to the hornbook law proposition that new uses of easements which create greater burdens require additional compensation to the servient tenement owner. That proposition, with which I do not quibble, needs no citation. It is however, wholly inapplicable to this case, first because the facts will not support allegations of greater burden, and second because the Preseaults have waived the point by not arguing it.
. The State recognizes the unpleasant burdens associated with use of the easements as a storage facility for rolling stock. To save the Preseaults from that particular nuisance, the contract creating the trail expressly provides that if the trail is removed in favor of future transportation uses, the easements will not be used as a storage facility.
. In the light of Stevens v. MacRae, discussed at length above, the Preseaults could not argue against use of the rail right-of-way for public transportation as a roadway.
. I do not know if the court would have reached the same conclusion if the railroad had been operated by the state, not for commercial gain, but for public benefit.
. In Lawson, plaintiffs takings case was dismissed on the pleadings for failure to state a claim upon which relief could be granted. Id. 730 P.2d at 1310. The plaintiffs had alleged that the rail easement was "for rail purposes only,” and the court interpreted "rail purposes" under Washington case law as limited to the “furnishing transportation, either freight or passenger, to the public.” Id. 730 P.2d at 1312. The court held that a hiking and biking trail could not be encompassed in that meaning of "rail purpose,” and that under state law the scope of the original easement thus barred the new use. Such, of course, is not our case, for, as I have stated above, the easements in this case were not restricted to active rail transportation use.
. The Preseaults filed their complaint in this case in December 1990, at which time Lawson had been on the books for four years. Washington Wildlife had been on the books for seven years before the Preseaults came to the Cotut of Federal Claims. Lawson, as the plurality judges recognize, is virtually on all fours with the facts of this case (except that the plaintiff sued the state, not the United States): a state with a railbanking policy which used state government *1079agencies to convert an old railroad easement to a recreational trail, pursuant to a state statute which authorized change of public use of a rail easement to the new public uses without payment of additional compensation to the owner of the servient tenement. In Lawson, the court noted that the existing federal rails to trails program was complimented by the state policies, and that the federal government had consented to the conversion of the easement to the trail. Because of the pervasive state action in perpetuating the easements, the court held the state laws to constitute a taking of the landowner's properly under the state constitution.
If Lawson indeed is entitled to the weight assigned by the plurality judges, one could fairly query why the Preseaults instead did not bring suit against the State in the Vermont courts, on the theory that the State has committed the taking in this case.