Full opinion text
Opinion filed by Circuit Judge PLAGER, in which Circuit Judges RICH, NEWMAN, and MAYER join. Concurring opinion filed by Circuit Judge RADER, in which Circuit Judge LOURIE joins. Dissenting opinion filed by Circuit Judge CLEVENGER, in which Circuit Judges MICHEL and SCHALL join. PLAGER, Circuit Judge. In this Takings case, the United States denies liability under the Fifth Amendment of the Constitution for actions it took pursuant to the Federal legislation known as the Rails-to-Trails Act. The original parties to the ease were the property owners, J. Paul and Patricia Preseault, plaintiffs, and the United States (the “Government”), defendant. The State of Vermont (the “State”), claiming an interest in the properties involved, intervened and, under the joinder rules of the Court of Federal Claims, entered its appearance as a co-defendant. The Court of Federal Claims, on summary judgment after hearings and argument, concluded that the law was on the Government’s side, and rendered judgment against the complaining property owners. Preseault v. United States, 27 Fed.Cl. 69 (1992). The property owners appeal. The appeal initially was heard by a three-judge panel which agreed with the trial court judgment in the Government’s favor and affirmed. Preseault v. United States, 66 F.3d 1167 (Fed.Cir.1995). Subsequently the full court concluded that the case raised important issues of Constitutional dimension, and that it was not certain that the property owners were wrong in their claims. Accordingly, the panel opinion was vacated, the case was taken in banc, and additional briefing and argument was ordered. Preseault v. United States, 66 F.3d 1190 (Fed.Cir.1995). The matter having now been heard before the in banc court, and thorough consideration having been given to the issues and to the arguments of the parties and the several amici , we conclude that, for the reasons we shall explain, the trial court erred in giving judgment' for the Government; that judgment is reversed. The case is remanded to the trial court for further proceedings to determine the just compensation to which the property owners are entitled. A. INTRODUCTION AND SUMMARY In brief, the issue in this case is whether the conversion, under the authority of the Rails-to-Trails Act and by order of the Interstate Commerce Commission, of a long unused railroad right-of-way to a public recreational hiking and biking trail constituted a taking of the property of the owners of the underlying fee simple estate. At this point we shall refer to the railroad’s interest in the property by the term “right-of-way.” That term is sufficient to indicate that the railroad had obtained a property interest allowing it to operate its equipment over the land involved. Later in the opinion it will become important to more precisely delineate the nature of the railroad’s property interests, after which the use of the term “right-of-way” will refer only to those defined interests. The facts of the case are reported in full in the several opinions already rendered in connection with this matter: the decision of the United States Court of Appeals for the Second Circuit, holding the Rails-to-Trails Act constitutional and the Preseaults without remedy, Preseault v. ICC, 853 F.2d 145 (2d Cir.1988) (Preseault I); the decision of the United States Supreme Court, on certiorari from the Second Circuit, affirming the constitutionality of the Rails-to-Trails Act on its face, but concluding that the Preseaults may have a remedy in the Court of Federal Claims under the Tucker Act for a Fifth Amendment “taking,” Preseault v. ICC, 494 U.S. 1, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990) (Preseault II); the initial decision of the Court of Federal Claims, Preseault v. United States, 24 Cl.Ct. 818 (1992) (Preseault 1), in which the trial judge, after hearing and argument, granted partial summary judgment for the Preseaults, and denied the Government’s cross-motions for summary judgment; and the final judgment of the Court of Federal Claims, reported at 27 Fed.Cl. 69 (1992) (Preseault 2), concluding that the law was against the Preseault’s claim for compensation under the Fifth Amendment, granting the Government’s second cross-motion for summary judgment, and ordering judgment dismissing the complaint. There are also two decisions in related matters by the Supreme Court of Vermont. The first, in 1986, holds that affected property owners (in that case the Preseaults and others) cannot maintain a suit in state court for a declaration of rights concerning the matter at issue before us because the matter is exclusively within the province of the Federal Government pursuant to the provisions of the Interstate Commerce Commission Act, and that the state court is therefore without subject matter jurisdiction. Trustees of the Diocese of Vermont v. State, 145 Vt. 510, 496 A.2d. 151 (1985). The second state court decision, some ten years later, affirms an injunction against the Preseaults prohibiting them from using that part of their property subject to the original right-of-way for any purpose other than as members of the general public. State v. Preseault, 163 Vt. 38, 652 A.2d 1001 (Vt.1994). In light of this record, we refer the reader to the earlier opinions for the full details of the events leading up to this appeal. For purposes of the decision here we summarize and condense that history, and recite only the salient facts relevant to the decision. On appeal we affirm a summary judgment if the record before us discloses that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Although we give due consideration to the views of the trial court, we decide anew questions about the applicable law, without deference to those views. In summary, we conclude that the trial court was correct in finding that the 1899 transfers to the railroad created easements for use for railroad purposes; the fee estates remained with the original property owners. (Part C.l.) We accept the Government’s position that ultimately this is a matter to be decided under controlling federal law and Constitution, but we reject the Government’s central thesis that general federal legislation providing for the governance of interstate railroads, enacted over the years of the Twentieth Century, somehow redefined state-created property rights and destroyed them without entitlement to compensation. (Part C.2.) The trial court erred in accepting that thesis. As far as the Government’s defenses based on the state’s property law are concerned, we conclude that even if these easements were still in existence at the time the trail was created, there was no legal justification for the intrusion upon the Preseault’s property. We find no support in Vermont law for the proposition, propounded by the defendants and accepted by the dissent, that the scope of an easement limited to railroad purposes should be read to include public recreational hiking and biking trails (Part D). But we find no clear error in the trial court’s determination that in fact these easements had been abandoned years before the creation of the trail (Part E), and that determination is affirmed. Finally, we conclude that the taking that resulted from the establishment of the recreational trail is properly laid at the doorstep of the Federal Government. Whether the State’s role in the matter should have resulted in liability for the State, or whether the State could absolve itself by pointing to the Federal Government, as the State Court held, is immaterial. The Federal Government authorized and controlled the behavior of the State in this matter, and the consequences properly fall there. (Part E.) B. FACTUAL BACKGROUND The Preseaults own a fee simple interest in a tract of land near the shore of Lake Champlain in Burlington, Vermont, on which they have a home. This tract of land is made up of several previously separate properties, the identities of which date back to before the turn of the century. The dispute centers on three parcels within this tract, areas over which the original railroad right-of-way ran. The areas are designated by the trial court as Parcels A, B, and C. Two of those parcels, A and B, derive from the old Barker Estate property. The third parcel, C, is part of what was the larger Manwell property. The Rutland-Canadian Railroad Company, a corporation organized under the laws of Vermont, acquired in 1899 the rights-of-way at issue on Parcels A, B, and C, over which it laid its rails and operated its railroad. Over time the ownership interests of the Rutland-Canadian passed into the hands of several successor railroads with different names; except as it may be necessary to differentiate among them, they will be referred to collectively as the Railroad. Meanwhile, ownership of the properties over which the rights-of-way ran passed through the hands of successors in interest, eventually arriving in the hands of the Pre-seaults. A map of the Preseault tract, showing the various parcels and the areas subject to the railroad’s rights-of-way, appears in 27 Fed.Cl. at 72, and is reproduced here for the benefit of the reader: C. THE PROPERTY INTERESTS In Preseault II, Justice Brennan writing for the Supreme Court noted the importance of determining the nature of the interests created by these turn-of-the-century transfers: The alternative chosen by Congress [the Rails-to-Trails program] is less costly than a program of direct federal trail acquisition because, under any view of takings law, only some rail-to-trail conversions will amount to takings. Some rights-of-way are held in fee simple. Others are held as easements that do not even as a matter of state law revert upon interim use as nature trails. Preseautt II, 494 U.S. at 16, 110 S.Ct. at 924 (citation omitted). Justice O’Connor, in a concurring opinion for herself and Justices Scalia and Kennedy, developed the point further: [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 possess the property interest that they claim has been tak-en_ Determining what interest petitioners would have enjoyed under Vermont law, in the absence of the ICC’s recent actions, will establish whether petitioners possess the predicate property interest that must underlie any takings claim. We do not attempt to resolve that issue. Id. at 20, 110 S.Ct. at 926 (citation omitted). Clearly, if the Railroad obtained fee simple title to the land over which it was to operate, and that title inures, as it would, to its successors, the Preseaults today would have Ho right or'interest in those parcels and could have no claim related to those parcels for a taking. If, on the other hand, the Railroad acquired only easements for use, easements imposed on the property owners’ underlying fee simple estates, and if those easements were limited to uses that did not include public recreational hiking and biking trails (“nature trails” as Justice Brennan referred to them), or if the easements prior to their conversion to trails had been extinguished by operation of law leaving the property owner with unfettered fee simples, the argument of the Preseaults becomes viable. The determinative issues in the case, then, are three: (1) who owned the strips of land involved, specifically did the Railroad by the 1899 transfers acquire only easements, or did it obtain fee simple estates; (2) if the Railroad acquired only easements, were the terms of the easements limited to use for railroad purposes, or did they include future use as public recreational trails; and (3) even if the grants of the Railroad’s easements were broad enough to encompass recreational trails, had these easements terminated prior to the alleged taking so that the property owners at that time held fee simples unencumbered by the easements. The Government enriches the case with an argument that would have profound impact on future takings jurisprudence: that the general federal legislation providing for the Government’s control over interstate railroad operations as enacted and amended over the years had the effect of redefining the private property rights of these owners, leaving them without a compensable interest in the land. Before addressing these several issues, a preliminary matter. There is an alternative way, frequently used today including by the parties here, to describe property transactions involving easements. Instead of calling the property owner’s retained interest a fee simple burdened by the easement, this alternative labels the property owner’s retained interest following the creation of an easement as a “reversion” in fee. Upon the termination, however achieved, of the easement, the “reversion” is said to become fully possessory; it is sometimes loosely said that the estate “reverts” to the owner. Under traditional common law estates terminology, a “reversion” is a future interest remaining in the transferor following the conveyance of certain lesser estates to a transferee, typically when the transferee takes a possessory estate of freehold, for example a life estate. An easement is not such a possessory estate of freehold. Traditional characterization describes an easement as a “use” interest, sometimes an “incorporeal hereditament,” but not a “possessory” interest in the land. Therefore labeling the retained interest a “reversion” is not consistent with the traditional classification scheme, which views the retained interest as a present estate in fee simple, subject to the burden of the easement. Be that as it may, whether the property owner’s retained interest following the conveyance of an-easement is denominated a fee simple estate or a reversion, it is uniformly treated at common law as a vested estate in fee. Under either characterization the result upon termination of the easement is the same. For consistency we use the traditional terminology which recognizes that the transferor remains seised of the freehold estate, and thus labels the owner’s estate as a fee simple, burdened, during the life of the easement, by the easement-holder’s rights. 1. The Interests Created The question of what estates in property were created by these turn-of-the-century transfers to the Railroad requires a close examination of the conveying instruments, read in light of the common law and statutes of Vermont then in effect. Ideally that question would be decided by the State of Vermont’s courts, utilizing their knowledge of and experience with their state’s property law. However, when the question of the rights of the property owners vis-a-vis the successors of the Railroad was raised in the Vermont courts in the suit brought in 1981, cited above, the Vermont Supreme Court took the position that the state courts were without subject matter jurisdiction due to the pervasive role of the Federal Government in railroad matters. See Trustees of the Diocese of Vermont v. State, 145 Vt. 510, 496 A.2d 151 (1985). The Vermont courts thus declined to address the question. Later, when this question of state law came before this court in banc, the possibility of referring the question back to the state courts was considered. However, at the argument in the ease before us we were advised by the State’s Assistant Attorney General that Vermont has no mechanism for having such a question referred by a federal court to the state courts for decision. We have no choice, then, but to determine this question of state law ourselves. In this undertaking we have the benefit of careful analysis by the trial judge. With regard to the two parcels, A and B, derived from the Barker Estate, the trial judge examined, as have we, the document referred to as a “Commissioner’s Award,” dated September 2, 1899, as well as the relevant cases and statutes of Vermont. The Commissioner’s Award, which is the only document that memorializes the event, is unlike a deed in that it does not contain the usual premises (the clause describing the parties to and purposes of the transaction) or habendum clause (defining the extent of the ownership interest conveyed). Usually in a deed the habendum clause would define the exact interest to be conveyed, whether a fee simple or a lesser interest, although the premises clause sometimes serves as well. Here, the Commissioner’s Award simply confirms that “the Rutland-Canadian Railroad Company ... for the purposes of its railroad has located, entered upon and occupied lands owned by [the Barkers] ... described as follows [and here follows a metes and bounds description of the strip of land].” The document then states that the owners of the land and the Railroad have not agreed as to the damages to be paid to the owners, that upon application by the Railroad three disinterested commissioners were appointed by the Supreme Court of Vermont, and that “according to the provisions of the Act incorporating said Company and the Statutes of the State of Vermont” the commissioners “appraise and determine the damage to the said owners of said land occasioned by such location, entry and occupation by the said Company” to be a stated sum. The references to the purposes of the Railroad, and to the provisions of the Act incorporating it, are to 1898 Vermont Acts No. 160, entitled “An Act to Incorporate the Rut-land-Canadian Railroad Company,” approved November 4, 1898. That Act provided that certain named individuals constituted and created a body politic and corporate by the name of the “Rutland-Canadian Railroad Company,” for the purpose and with the right of constructing, maintaining and operating a railroad for public use in the conveyance of persons and property by the power of steam or otherwise.... Said Corporation shall have and enjoy the right of eminent domain ... [and] may ... take ... such real and personal estate as is necessary or proper in the judgment of such corporation, for the construction, maintenance and accommodation of such railroad ... as the purposes of the corporation may require .... 1898 Vt. Acts No. 160, § 1. The Act goes on to state that the corporation shall have all privileges and rights given by the general law to railroad companies for acquiring title and possession to property covered by its location. It is clear from the relevant documents and statutes that the actions of the Railroad in this case fall under well-established Vermont laws and procedures for acquisition of rights-of-way by companies incorporated for railroad purposes. In her opinion, the trial judge concluded that, in the context of the Vermont procedure for commissioners’ awards for railroad rights-of-way, and in light of the Vermont case law, cited and discussed in the trial court’s opinion, “[t]he portion of the right-of-way consisting of the parcel of land condemned from the Barker Estate and taken by commissioner’s award is indisputably an easement under the law of the State of Vermont.” 24 Cl.Ct. at 827. As a result of our independent examination of the question we conclude that there is little real dispute about this. That was the rule in the early Vermont cases, and continues to be the rule today. See, e.g., Dessureau v. Maurice Memorials, Inc., 132 Vt. 350, 351, 318 A.2d 652 (1974) (“The taking, pursuant to statutory authority, gave the railroad only an easement, not a fee, and upon abandonment, the property reverts to the former owner.”) (citing Troy & Boston R.R. v. Potter, 42 Vt. 265, 274 (1869)). In Troy & Boston Railroad v. Potter, the suit was an action of trespass on the freehold, testing the question of whether the original property owner who sold the right-of-way to the railroad retained the right to harvest the herbage and other products of the soil growing on the right-of-way. The right-of-way had been surveyed and located, and there was some dispute over whether a conveying document had been properly executed and recorded. The court held that, regardless of the recording question, the survey and location of the road is what constitutes the taking of the land over which it was laid. Troy & Boston R.R. v. Potter, 42 Vt. at 272. Consistent with its earlier decision in Hill v. Western Vermont. Railroad, 32 Vt. 68 (1859), the court deemed the railroad to have acquired only an easement and not a fee, but nevertheless concluded that the railroad had the sole and exclusive possession of the land while in the exercise of that easement, “so to keep it as to exclude all probability of any accident resulting from any outside interference with such possession.” Troy & Boston R.R. v. Potter, 42 Vt. at 276. With few exceptions the Vermont cases are consistent in holding that,- practically without regard to the documentation and manner of acquisition, when a railroad for its purposes acquires an estate in land for laying track and operating railroad equipment thereon, the estate acquired is no moré than that needed for the purpose, and .that typically means an easement, not a fee simple estate. The trial court fully and correctly analyzed the matter; it hardly needs further elaboration. We find no error in the trial court’s analysis and conclusion, and it is affirmed. Determining the provenance of the third parcel, C, derived from the Manwell tract, tests the above stated proposition even further. The operative instrument is a warranty deed, dated August 2,1899, from Frederick and Mary Manwell to the Railroad. The deed contains- the usual habendum clause found in a warranty deed, and purports to convey the described strip of land to the grantee railroad “[t]o have and to hold the above granted and bargained premises ... unto it.the said grantee, its successors and assigns forever, to its and their own proper use, benefit and behoof forever.” The deed further warrants that the grantors have “a good, indefeasible estate, in fee simple, and have good right to bargain and sell the same in manner and form as above written. ...” In short, the deed appears to be the standard form used to convey a fee simple title from a grantor to a grantee. But did it? At the outset it should be noted that the resolution of this issue will not moot the question of the Government’s potential liability for its action in creating the recreational trail, since, as held above, the A and B parcels unquestionably involved conveyances of easements and not fee simple estates, and thus the question of a taking of the Preseaults’ property remains to be decided. The issue of ownership of Parcel C does go to the question of damages, however. As noted earlier, if the Manwell transfer was a conveyance in fee simple, the Preseaults would have acquired no interest in that strip of land, and can claim no damages for its later use as a recreational trail. At trial, the Preseaults argued that, although the Manwell deed purports to grant a fee simple, the deed was given following survey and location of the right-of-way and therefore it should be construed as conveying only an easement in accordance with Vermont railroad law. The Government responded that, while it was true that survey and location of the railroad’s right-of-way had occurred, no “formal” eminent domain proceedings had taken place, and therefore the deed should be taken at its face as a conveyance in fee simple. Each side cited Vermont cases to support its position. The trial court, after reviewing and discussing at length the cases and other relevant materials, concluded that “[u]nder well-settled Vermont law, the property interests in the parcel ... conveyed following survey and location by warranty deed, amounted to [an] easement[.]-” 24 Cl.Ct. at 830. Our independent review of the state of Vermont law on this issue leads us to conclude, despite some uncertainties in the matter, that the trial court is correct. Part of the problem is that the Vermont eases that seem most on point are quite old. Assuming the Vermont courts would follow its precedents, a fair assumption, the probable outcome is that, despite the apparent terms of the deed indicating a transfer in fee, the legal effect was to convey only an easement. Two cases, from among others, will illustrate why. In Hill v. Western Vermont Railroad, 32 Vt. 68, the railroad had a contract -with one Josiah Burton to purchase some land for railroad purposes. The bond, or contract, entered into before the railroad had surveyed their right-of-way called for Burton to convey such lands “as shall be required” for the company’s road. Plaintiff, a creditor of the railroad, attempted to levy on a part of the land potentially subject to the contract. The railroad defended against the levy by arguing'that the tract at issue was not needed by the railroad for its purposes, and thus Burton could not have been made to sell it to the railroad. Since, it was argued, the claimed land was not subject to contract enforcement, it was not subject to the levying creditor. The Vermont Supreme Court held for the railroad. The court observed that railroads acquire needed land either by order of a designated public body (through the exercise of eminent domain) or by consent of the landowner, although even in the latter case “the proceeding is, in some sense, compulsory.” Id. at 75. Thus, [i]n either mode of appropriating land for the purposes of the company, there is this implied limitation upon the power, that the company will take only so much land or estate therein as is necessary for their public purposes. It does not seem to us to make much difference in regard to either the quantity or the estate whether the price is fixed by the commissioners or by the parties. Id. at 76. The court held that the estate which Burton was to convey would be “a mere easement for a particular use,” and under the governing statute would not be subject to a levy. Id. at 77. Ten years later the Vermont Supreme Court decided Troy & Boston Railroad v. Potter, discussed above. As noted, the right-of-way in that case had been surveyed and located, but there was some dispute over whether a conveying document had been properly executed and recorded. The court held that, regardless of the recording question, the survey and location of the road is what constitutes the taking of the land over which it was laid. Id., 42 Vt. at 272. Consistent with Hill, the court deemed the railroad to have acquired only an easement and not a fee. Thus it is that a railroad that proceeds to acquire a right-of-way for its road acquires only that estate, typically an easement, necessary for its limited purposes, and that the act of survey and location is the operative determinant, and not the particular form of transfer, if any. Here, the evidence is that the Railroad had obtained a survey and location of its right-of-way, after which the Manwell deed was executed confirming and memorializing the Railroad’s action. On balance it would seem that, consistent with the view expressed in Hill, the proceeding retained its eminent domain flavor, and the railroad acquired only that which it needed, an easement for its roadway. Nothing the Government points to or that we can find in the later eases would seem to undermine that view of the case; the trial court’s conclusion that the estate conveyed was an easement is affirmed. We thus conclude that fee simple title to all three parcels in dispute remained with their original owners, subject only to the burden of the easements in favor of the Railroad. Those titles passed through various hands, coming to rest eventually in the hands of the Preseaults, where they lay in 1986 when the public recreational trail was created by the Government’s action. 2. The Impact of Federal Legislation The United States argues that the property interests in Parcels A, B, and C at the time the Preseaults acquired them are defined not by the original conveyances, as understood pursuant to state law, but by the evolving enactment and implementation of federal railroad law between 1899 and the date (1980 for parcels A and B; 1966 for parcel C) the Preseaults acquired the parcels. As a consequence, says the Government, when the Preseaults bought the land whatever rights might have existed in prior owners regarding possession following abandonment of the easements no longer existed, those rights having been modified or abolished by the Federal Government’s plenary authority over rail operations. There are several flaws, both of logic and of law, in this argument. There can be no denying that the Federal Government, beginning as early as 1920, has occupied the field of regulation of interstate railroad operations, preempting any pattern of conflicting state regulation. See, e.g., Transportation Act of 1920, ch. 91, 41 Stat. 466 (1920); Rail Revitalization and Regulatory Reform Act of 1976, Pub.L. No. 94-210, 90 Stat. 31 (1976) (“4-R Act”); 49 U.S.C.. §§ 101 et seq. And there can be no question that if the Federal Government wishes to create a national' network of public recreational biking and hiking trails, it is within its power to do so. See Preseault II, 494 U.S. 1, 110 S.Ct. 914,108 L.Ed.2d 1. And that power includes the power to preempt state-created property rights, including the rights to possession of property when railroad easements terminate. Id. However, as Justice O’Con-nor succinctly pointed out in her concurring opinion, having and exercising the power of preemption is one thing; being free of the Constitutional obligation to pay just compensation for the state-created rights thus destroyed is another. Id. at 22, 110 S.Ct. at 927. The 1899 conveyances of Parcels A, B, and C established state-created rights in the owners of the underlying land to have unfettered possession upon the termination of the railroad’s easements. If those rights were subsequently and sub rosa destroyed by Federal legislation, prior to the acquisition of the properties by the Preseaults, when did it happen? Could the Transportation Act of 1920 by itself have done it? Not very well. The passage of that Act, which in essence gave the ICC regulatory power over the conduct of railroads, including the establishment and cessation of service to any given community, in and of itself terminated no easements. The Act did not purport to address the rights of private property owners; indeed, it affected railroad operations themselves only with regard to future conduct and then only upon the issuance of individual orders of the ICC. And indeed, no change in the service use of Parcels A, B, and C occurred until 1970, some fifty years after enactment of the original Act. If in 1920 the then-owners of these parcels had brought suit against the United States for a taking as a result of the enactment of the Transportation Act of 1920, it is difficult to imagine that any court would have granted them an award. The owner would have had to argue that the taking was a regulatory taking, since no actual physical occupation by the Government happened until fifty years later. But that was not a likely argument in 1920. The concept of regulatory takings as we know them today was not yet born; Justice Holmes did not utter his famous statement about regulation that “goes too far” until two years later. Furthermore, enactment of broad general legislation authorizing a federal agency to engage in future regulatory activity is not the type of government action that alone supports a taking claim. See, e.g., Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (provisions of Surface Mining Control and Reclamation Act prescribing performance standards and authorizing variances for lafid development, including provisions prohibiting mining in certain locations, did not, on their face, violate the takings clause). If Congress intended the 1920 Act to have such an effect, contrary to all established assumptions about general legislation, and with the result of directly obligating the Government to a potentially enormous liability of unknown dimensions for takings throughout the United States, there surely would have been some indication of that intent in the legislative history, if not in the legislation itself. The Government points to none, because none exists. The same problem prevails with regard to the enactment in 1976 of the 4-R Act, which contained authorization for the ICC to order a railroad, proposing to dispose of an unneeded right-of-way, to first offer it for sale for “public purposes.” 49 U.S.C. § 10906 (1994). And even if the 1983 Rails-To-Trails Act was part of the evolving history pre-Preseault (which it was not since their ownership of all three parcels was vested by 1980), that Act also requires an administrative decision to apply the law to any given unused easement. Until the ICC makes the administrative dedsion to convert an unused right-of-way to a trail, rather than simply permit abandonment, and finds an appropriate public agency to operate the trail, a landowner’s suit for a taking would run afoul of established requirements for exhaustion of administrative remedies. See, e.g., Hodel, 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1; Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). -Thus any property owner who was prescient enough to allege a regulatory taking following the enactment of the Transportation Act of 1920, in addition to having some doctrinal explaining to do, presumably would have been met by an equally prescient Government with the defenses of absence of ripeness and failure to exhaust administrative remedies. The Government attempts to evade this legal morass by not identifying any specific event that' destroyed these property rights created back in 1899, but by instead invoking the broad concept that “background principles” define property rights, suggesting that there is nothing to preclude the use of federal law as well as state law in selecting the relevant “background principles.” In support of this broad principle the Government relies heavily on phrases extracted from the Supreme Court’s recent decision in Lucas v. South Carolina Coastal Council 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). But Lucas provides no such support. The background principles referred to by the Court in Lucas were state-defined nuisance rules. Id. at 1029-32, 112 S.Ct. at 2900-02. In Lucas the Court took the position that if the State of South Carolina wished to control what it considered undesirable conduct by property owners (in that case building a house on beachfront property), a regulatory agency’s order preventing the conduct was non-compensable under the Fifth Amendment if the imposition did little more than echo similar constraints available under the State’s traditional nuisance law. In other words, the State could impose non-compensa-ble restraints on property owners either through court-ordered injunctions or administrative agency orders, so long as either were within the scope of established state law principles of common law nuisance, principles which inhere in every property owner’s title. Id. Nothing in Lucas suggests that the background principles of a state’s property law include the sweep of a century of federal regulatory legislation, and indeed much of what the Supreme Court said then, as well as in Preseault II, about property rights indicates to the contrary. Nor is there any suggestion in this case that the Preseaults’ use of their property could be considered in any way to be a public nuisance under traditional nuisance concepts, justifying the intervention of state authorities. The Government cites two recent cases by this court, M & J Coal Co. v. United States, 47 F.3d 1148 (Fed.Cir.), cert. denied, — U.S. -, 116 S.Ct. 53, 133 L.Ed.2d 18 (1995), and California Housing Securities, Inc. v. United States, 959 F.2d 955 (Fed.Cir.1992), as evidence that federal regulatory law generally modifies state property rights, and renders conflicting state-created property rights unenforceable and noncompensable. In M & J Coal we held that the Government, in enforcing the provisions of the Surface Mining Control and Reclamation Act of 1977, could require a coal mine operator to mine in a manner that prevented surface subsidence, and thus prevent harm to the interests of third parties. We rejected the companies’ contention that enforcement of these safety standards took their property in violation of the Fifth Amendment. In California Housing, we - upheld the right of federal bank regulators, in the course of enforcing the federal regulatory framework governing the banking industry, to seize the books and papers and occupy the premises of a bank that was subject to an enforcement action. In both eases what was at issue was the reasonableness of the Government’s actions in enforcing the law. Since no one has a property right to violate otherwise valid laws controlling social conduct, the claims that enforcement of the law, found to have been conducted reasonably under the circumstances, constituted a taking under the Fifth Amendment were unavailing. In the Pre-seaults’ case, the occupation of their property by the Government was not in pursuance of an enforcement action to correct prohibited conduct on their part, unless it can be said that their desire to enjoy their private property without sharing it with the public falls under that rubric. This argument, that the Preseaults’ title somehow incorporates the federal transportation regulatory statutes enacted since the 19th Century, was made by the Government to the trial court, and again in its opening brief before the original panel, based on a different theory than the Lucas “background principles” concept presented to the in banc court. It is unclear whether the Government intended to abandon the earlier theory, but since it was the one accepted by the trial court in holding for the Government, it warrants examination. The argument goes as follows. These regulatory statutes governing railroad operations, at least the original statute enacted in 1920 authorizing ICC jurisdiction, were on the books when the Preseaults began buying the parcels at issue, As a consequence, the Preseaults should have anticipated that at some time in the future the Government might exercise its general regulatory powers in a way that could frustrate the Preseaults’ interest in obtaining the land free of the easement upon its abandonment by the railroad. Thus the Preseaults could have no “reasonable expectations” that they would ever get the property -free of the encumbering easement even if the railroad ceased to use it. Absent such an expectation, the Pre-seaults cannot complain that anything was taken from them; the title acquired by the Preseaults in effect has been modified by the history of federal regulatory enactments. Support for this novel notion is found in two sentences lifted out of context from the Supreme Court’s decision in Loretto v. Tele prompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), which ironically is the decision that definitively established the rights of a property owner to compensation whenever there is a physical taking, even a relatively minor one. In Loretto, Justice Marshall, writing for the Court, said: “We affirm the traditional rule that a permanent physical occupation of property is a taking. In such a case, the property owner entertains a historically rooted expectation of compensation.... ” Loretto, 458 U.S. at 441, 102 S.Ct. at 3179. The Government reverses the order of the sentences, as if it read, “If the property owner has an expectation of compensation, then a permanent physical occupation of property is a taking.” In effect, the Government argues that Loretto stands for the proposition that an owner’s property rights are defined by what the owner might (should?) have believed the law to be at the time she acquired her property, and that that belief makes it so. But' what Justice Marshall clearly said was that a physical occupation of one’s property by the Government, that is, a taking of a recognized property interest, .invokes a general expectation of compensation. The Government’s reading reverses the sentences, standing the law on its head. They read it to say that an owner’s subjective expectations of keeping or losing her property under various possible scenarios define for that owner the extent of her title. Just the reverse is true. It is the law-created right to own private property, recognized and enforced by the Constitution, legislation, and common law, that gives the owner an historically rooted expectation of compensation. The expectations of the individual, however well- or ill-founded, do not define for the law what are that individual’s compensable property rights. This issue of title and ownership expectations must be distinguished from the question that arises when the Government restrains an owner’s use of property, through zoning or other land use controls, without disturbing the owner’s possession. Placing restraints on an owner’s use of her property invokes the regulatory takings issue, rather than the question of the Government’s physical occupation of private property, and both factually and legally raises significantly different issues. In the regulatory taking cases the owner’s reasonable investment-backed expectations have been held to be relevant to the question of whether a regulatory imposition goes too far in constraining the owner’s lawful uses of the property. E.g., Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). As the Supreme Court makes clear, these two quite different situations call for quite different analyses. The Government’s attempt to read the concept of “reasonable expectations” as used in regulatory takings law into the analysis of a physical occupation case would undermine, if not eviscerate, long-recognized understandings regarding protection of property rights; it is rejected categorically. The trial court erred in accepting the Government’s effort to inject into the analysis of this physical taking case the question of the owner’s “reasonable expectations.” Under the governing law of the State, the Pre-seaults, successors in title to those who owned the property when the easements were created, owned the same title and interest as they, and are entitled to the same protections the law grants. . D. The Scope of the Railroad’s Easement We turn then to the question of whether the easements granted to the Railroad, to which the Preseaults’ title was subject, are sufficiently broad in their scope so that the use of the easements for a public recreational trail is not a violation of the Preseaults’ rights as owners of the underlying fee estate. Both the Government and the State argue that under the doctrine of “shifting public use” the scope of the original easements, admittedly limited to railroad purposes, is properly construed today to include other public purposes as well, and that these other public purposes include a public recreational hiking and biking trail. Under that theory of the ease, the establishment in 1986 of such a trail would be within the scope of the easements presumably now in the State’s hands, and therefore the Preseaults would have no complaint. On the other hand, if the Government’s use of the land for a recreational trail is not within the scope of the easements, then that use would constitute an unauthorized invasion of the land to which the Preseaults hold title. The argument on this issue assumes that the easements were still in existence in 1986, and for purposes of this part of the discussion we assume they were. As an initial matter, we have found no Vermont case, either in this century or the last, and the parties point to none, in which the Vermont courts establish or apply something called the “shifting public use” doctrine. The statement in the dissent that “Vermont common law includes the ‘shifting public use’ doctrine as part of its law concerning the abandonment of easements” appears to be without support in any opinions of the Vermont courts. Thus the legitimacy of that phrase in the context of Vermont law, as well as its meaning, remain unclear. What is the case is that early opinions of the Vermont Supreme Court gave railroads broad scope to “do any act upon the land conducive to those public uses for which their charter was granted.” Connecticut & Passumpsic Rivers R.R. v. Holton, 32 Vt. 43, 47 (1859). In Brainard v. Missisquoi Railroad, 48 Vt. 107 (1874), the court held that a railroad company that purchased a plank road company and replaced a plank road with a railroad maintained the right to an easement granted to the plank road company. The court held that the land did not “revert” to the owner of the fee estate,' and that he was entitled to damages only for his loss of access to a public highway. As discussed previously, the Rutland-Ca-nadian Railroad Company was incorporated by Act of the Vermont legislature solely “for the purpose and with the right of constructing, maintaining and operating a railroad for public use in the conveyance of persons and property by the power of steam or otherwise.” The Act of incorporation specified that the corporation “may receive, take, hold, purchase, use and convey such real and personal estate as is necessary or proper in the judgment of such corporation, for the construction, maintenance and accommodation of such railroad as aforesaid, and its structures and appurtenances, and as the purposes of the corporation may require....” And, as explained earlier, the governing documents, in the case of Parcels A and B the Commissioners’ Award, in the case of Parcel C, the Manwell deed, do not themselves contain defining language, but instead incorporate the purposes specified in the incorporation Act. The question thus is whether an easement acquired for such specifically described purposes may be read broadly enough to include a public recreational biking and hiking trail. That precise issue has yet to be presented to the Vermont court. In the absence of a Vermont case on point, we must seek the answer in traditional understandings of easement law, recognizing as we must that Vermont follows and applies common law property principles. The easements involved here are express easements, meaning that .the scope of the easements are set out in express terms, either in the granting documents or as a matter of incorporation and legal construction of the terms of the relevant documents. “The extent' of an easement created by a conveyance is fixed by the conveyance.” 5 Restatement of PROPERTY § 482 (American Law Institute 1944). In a leading treatise on the subject, the authors state the general rale to be “[w]hen precise language is employed to create an easement, such terminology governs the extent of usage.” Jon. W. Bruoe and James W. Ely, Jr., The Law of Easements and LICENSES in Land ¶ 8.02[1], at 8-3 (rev. ed.. 1995).. The general rale does not preclude the scope of an easement being adjusted in the face of changing times to serve the original purpose, so long as the change is consistent with the terms of the original grant: It is often said that the parties are to be presumed to have contemplated such a scope for the created easement as would reasonably serve the purposes of the grant.... This presumption often allows an expansion of use of the easement, but does not permit a change in use not reasonably foreseeable at the time of establishment of the easement. RiChard R. Powell, 3 Powell on Real Property § 34.12[2] (Patrick J. Rohan ed., 1996). Applying this test, courts have held that an easement for water flow to a fulling-mill included the right to water flow to a later-established corn-mill which replaced the earner mill, Luttrel’s Case, 4 Rep. 86 (1601); and that an easement for a vehicular way, granted at a time when horse and wagon was a common means of transport, would permit use of motor vehicles instead when the latter became common, see Matteodo v. Capaldi, 48 R.I. 312, 138 A. 38 (1927); Diocese of Trenton v. Toman, 74 N.J.Eq. 702, 70 A. 606 (1908). Bernards v. Link, 199 Or. 579, 248 P.2d 341 (1952), is a good example of the application of the test. The question was whether an easement for a logging railroad, granted to defendant’s predecessor, would permit the substitution of a logging road for trucks, when the logging industry had moved to the use of such vehicles. The owners of the servient estate did not claim that the new use had subjected their property to any additional servitude, but that the new úse constituted an abandonment of the original easement. The court reviewed the history of transportation in the logging industry, noting that the use of logging tracks and of logging roads had been an evolutionary development in the Northwest’s logging industry: “[ijmprove-ments in tracks and the inexorable demand for lower cost of operation have made the logging road the successor to the logging railroad in divers places.” Id. 248 P.2d at 346. The court stated that [t]he evidence renders it clear that the paramount purpose of the parties was to enable the grantee to bring to Carlton, over the right of way described in the deed, the logs which were being produced near Tillamook Gate.... [W]e do not believe that the grantor intended to restrict the grantee to the specific type of equipment which was then in use. Id. 248 P.2d at 351-52. The court concluded that the use of logging tracks, after logging railroads became obsolete, was within the proper scope of the easement. When the easements here were granted to the Preseaults’ predecessors in title at the turn of the century, specifically for transportation of goods and persons via railroad, could it be said that the parties contemplated that a century later the easements would be used for recreational hiking and biking trails, or that it was necessary to so construe them in order to give the grantee railroad that for which it bargained? We think not. Although a public recreational trail could be described as a roadway for the transportation of persons, the nature of the usage is clearly different. In the one case, the grantee is a commercial enterprise using the easement in its business, the transport of goods and people for compensation. In the other, the easement belongs to the public, and is open for use for recreational purposes, which happens to involve people engaged in exercise or recreation on foot or on bicycles. It is difficult to imagine that either party to the original transfers had anything remotely in mind that would resemble a public recreational trail. Furthermore, there are differences in the degree and nature of the burden imposed on the servient estate. It is one thing to have occasional railroad trains crossing one’s land. Noisy though they may be, they are limited in location, in number, and in frequency of occurrence. Particularly is this so on a relatively remote spur. When used for public recreational purposes, however, in a region that is environmentally attractive, the burden imposed by the use of the easement is at the whim of many individuals, and, as the record attests, has been impossible to contain in numbers or to keep strictly within the parameters of the easement. As the Bruce & Ely treatise noted, “[a]n easement created to serve a particular purpose ends when the underlying purpose no longer exists,” BRUCE & Ely, supra, ¶ 10.0S[1], at 10-12, and “when an easement for railway purposes is found, it is generally considered to end when it is no longer used for the stated purposes,” id. ¶ 1.06[2][d], at 1-48. In the language of the old English courts, to allow this change would permit “a substantial variance in the mode of or extent of user or enjoyment of the easement so as to throw a greater burden on the servient tenement.” Bernards v. Link, 248 P.2d at 347. Most state courts that have been faced with the question of whether conversion to a nature trail falls within the scope of an original railroad easement have held that it does not. Lawson v. State, 107 Wash.2d 444, 730 P.2d 1308 (1986) (in banc), is an example of a case practically on all fours with the ease before us. The Burlington Northern Railroad Company petitioned the ICC for permission to discontinue rail service over a certain right-of-way. King County requested the ICC to determine that the right-of-way was suitable as a public recreational trail, and to require that it be offered for sale for public purposes. The ICC did so under its Rails-To-Trails authority, and King County acquired the right-of-way from the Railroad. The property owners who owned the underlying fee estates sued in Washington State court for a declaratory judgment that this was an unlawful taking without just compensation. The trial court held for the County. The Washington Supreme Court, in banc, reversed. The Court stated the common law rule to be that when a deed conveys a right-of-way for railroad purposes only, upon abandonment by the railroad of the right-of-way the land over which the right-of-way passes “reverts” to the reversionary interest holder (the owner of the fee estate) free of the easement. The court then stated: In addition to outright abandonment of a right of way, there may be a change in use of the right of way which is inconsistent with the purpose for which the right of way was granted. Where the particular use of an easement for. the purpose for which it was established ceases, the land is discharged of the burden of the easement and right to possession reverts to the original land owner or to that landowner’s successor in interest. Id. 730 P.2d at 1312. The court went on to hold that a hiking and biking trail is not encompassed within a grant of an easement for railroad purposes, citing cases from Illinois and Wisconsin, and concluded that “[a]p-plying common law principles, we hold that a change in use from ‘rails to trails’ constitutes abandonment of an easement which was granted for railroad purposes only. At common law, therefore, the right of way would automatically revert to the reversionary interest holders.” Id. 730 P.2d at 1313. The court went on to hold that a state statute which purported to prevent the ripening of the reversionary interest upon abandonment was unconstitutional as applied to the vested property rights of the plaintiffs “insofar as it purports to authorize King County to acquire without payment of just compensation existing reversionary interests which follow ease-merits for railroad purposes only.” Id., 730 P.2d at 1316. The Court thus concluded that “King County cannot acquire the [] right of way from Burlington Northern without payment of just compensation to the reversionary interest holders. • If the County takes this right of way and commences to build a recreation trail, it does so in violation of the constitution.” Id. Accord Schnabel v. County of DuPage, 101 Ill.App.3d 553, 57 Ill.Dec. 121, 428 N.E.2d 671 (1981); Pollnow v. State Dep’t of Natural Resources, 88 Wis.2d 350, 276 N.W.2d 738 (1979); see also National Wildlife Fed’n v. ICC, 850 F.2d 694 (D.C.Cir.1988) (rejecting ICC argument that rails-to-trails conversions will never constitute a taking, and remanding for further consideration especially regarding easements limited to railroad use and when railroad restoration “not foreseeable”). A few courts, under the particular terms of an easement or in light of a special statute, have held otherwise. In Washington Wildlife Preservation, Inc. v. State, 329 N.W.2d 543 (Minn.1983), plaintiffs were a group of property owners representing interests wishing to protect wildlife and other natural resources from the adverse impacts inherent in a public recreational trail. A nine mile long strip of land had been acquired in 1884 and 1885 by the original grantee railroad from a number of property owners. Thirteen or more deeds were involved. In 1980 the successor railroad conveyed the land to the State for a recreational trail. There were a number of issues in the case, including what was the estate conveyed in each of the deeds, the exact scope of those grants that were easements, and whether public recreational trails were consistent with the scope of an easement for use by a railroad. The court with little analysis declared that use of such a right-of-way for a recreational trail is consistent with the purpose for which the easements were originally acquired, public travel, and that such use imposes no additional burden on the servient estates. The court specifically pointed out that “[wjhile the grantors were.undoubtedly aware that a railroad would be constructed on the land, none of the deeds limit the use to railroad purposes.” Id. at 546. Furthermore, said the court, even though abandoned for railroad purposes, the easements were not abandoned for public travel purposes, including travel by hikers, bikers, cross-country skiers, and horseback riders. See also Rieger v. Penn Central Corp., No. 85-CA-11, 1985 WL 7919 (Ohio.Ct.App. May 21,1985) (general purpose of trail, public travel, is within scope of prescriptive railroad easement). Cf. Barney v. Burlington Northern R.R., 490 N.W.2d 726 (S.D.1992) (noting that use for recreational trail of railroad easement granted by federal statute comes within definition of “public highway,” thereby precluding abandonment under 43 U.S.C. § 912). For reasons peculiar to the particular circumstances, these few cases depart from the well established common law rules governing easements, and carry little persuasive authority. Given that the easements in this case are limited by their terms and as a matter of law to railroad purposes, we are unable to join the dissent’s effort to read into Vermont law a breadth of scope for the easements that is well outside the parameters of traditional common law understanding. The concept of “shifting public use” must be anchored in established precedent, or it becomes little more than speculation about what a hypothetical Vermont court in 1996 might do. Our responsibility here is to apply established law, not to make new law. If a dramatic reinterpretation of the scope of the established terms by which railroad easements were historically granted is to be imposed upon Vermont and the parties to this case, it should not be at the hand of a federal appellate court. E. Abandonment Even assuming for sake of argument that the Government and the State are correct and that the so-called “doctrine of shifting public use” is available to permit reading the original conveyances in the manner for which they argue, there remains yet a further obstacle to the Government’s successful defense. The Preseaults contend that under Vermont law the original easements were abandoned, and thus extinguished, in 1975. If that is so, the State could not, over ten years later in 1986, have re-established the easement even for the narrow purposes provided in the original conveyances without payment of the just compensation required by the Constitution. See, e.g., Loretto, 458 U.S. at 441, 102 S.Ct. at 3179. It follows that if the State could not in 1986 use the parcels for railroad purposes without that use constituting a taking, then it surely could not claim the right to use the property for other purposes free of Constitutional requirements. See Preseault 1, 24 Cl.Ct. at 835 (concluding that a “shifting public use” doctrine' could not apply because of discontinuity of use of the easement by State between 1975 and 1985). We have established that the effect of the tum-of-the-century transfers regarding Parcels A, B, and C was to create in the transferee Railroad an easement carrying the right to exclusive possession of the surface of the strips of land described in the conveyances fo