...But not just any Railroad...A?ÿ?ÿpublic benefit corporation/authority...The Metropolitan Transportation Authority in NY. The lawyers are going to have a field day with this.
We surveyed an old and very thin piece of property for a re-development project and found that there was an old sidetrack easement through it. Currently the location of the easement runs through two buildings and a parking lot. All of this sits on top of about 15 feet of fill were trucks used to sit under the tracks to get coal. The tracks have been gone for around 60 years and the buildings erected shortly thereafter...but there is no mechanism for release of the easement in the documents.
So after a year or so of negotiations with the MTA they come back and say they want six figures in payment in order to release a 50'x500' easement that hasn't been used in over 60 years and that currently has buildings on it. Currently the lawyers say that adverse possession cannot happen against a?ÿpublic benefit corporation/authority but are looking for other means.?ÿ
Other means = tell the MTA that the land owners will be happy to pull down the buildings whenever they decide to build a new side track. Probably cheaper in the long run than paying six figures for the easement release.
Interesting, and may be true.?ÿ However, I know of school district case in NY where they lost lands to AP that were deemed held in a proprietary capacity (evidenced by the fact they put them up for sale).?ÿ May be that MTA, like Adirondack Park, constitutionally only holds lands in a sovereign capacity.
I was involved in a case where the US government was encroaching on a railroad. They had hastily put up a fence after 9/11. RR said take it down. They were not willing to budge until it was pointed out that the US government can exercise eminent domain over the RR. Tables turned against the RR who was used to exercising eminent domain over others.?ÿ
That sounds like the RR could sue the Federal Govt in inverse condemnation.
California has a statute that dates to the 1930s which prohibits AP against the government.
I would look at passive abandonment governing statutes. Many States have them. Disuse for the prescriptive period may even eliminate public rights...
Brocho V??hatzlocho Corp. v. Metropolitan Transportation Authority
From a quick perusal - property integral to its transportation mission is deemed to be held by the MTA in a governmental capacity (and not subject to AP), rather than in a proprietary capacity (subject to AP)
MTA took over the?ÿLong Island Railroad in 1965 and the?ÿNew Haven commuter services, New York Central commuter services, and the Staten Island Railway in 1967.?ÿ?ÿ
IF the building is actually 60 years old, then it was constructed on property of one of the predecessor roadways prior to MTA's creation.?ÿ It would seem (to me at least) an argument could me made that if there was a building on the property at the time the MTA's acquisition then it couldn't be integral to the transportation mission that the Authority was created for as it was unusable for transportation when it the system was acquired.
Other means = tell the MTA that the land owners will be happy to pull down the buildings whenever they decide to build a new side track. Probably cheaper in the long run than paying six figures for the easement release.
I suspect the marketability of the buildings and the site will be nil until this gets more formally resolved. Likewise their title - insurability. Thus likewise their mortgage-ibility.
....Currently the lawyers say that adverse possession cannot happen against a?ÿpublic benefit corporation/authority but are looking for other means.?ÿ
The lawyers are right.?ÿ But they will be happy to continue to bill hours until somebody tells them to stop.
....IF the building is actually 60 years old, then it was constructed on property of one of the predecessor roadways prior to MTA's creation.?ÿ It would seem (to me at least) an argument could me made that if there was a building on the property at the time the MTA's acquisition then it couldn't be integral to the transportation mission that the Authority was created for as it was unusable for transportation when it the system was acquired.
Possibly it could be proven that the AP matured against the MTA's predessessor before the MTA took possession. If whoever that was could be AP'd against.
I think AP is barking up the wrong tree. I would look into abandonment through non-use or impossible to use it for its intended purpose, don't remember exactly what its called.
its an easement, not an estate in real property. I have a hunch MTA is over stating its value by a lot.
if the lawyers are worth their fees they should be pursuing those avenues and persuading MTA to accept a lot less.
Brocho V??hatzlocho Corp. v. Metropolitan Transportation Authority
From a quick perusal - property integral to its transportation mission is deemed to be held by the MTA in a governmental capacity (and not subject to AP), rather than in a proprietary capacity (subject to AP)
MTA took over the?ÿLong Island Railroad in 1965 and the?ÿNew Haven commuter services, New York Central commuter services, and the Staten Island Railway in 1967.?ÿ?ÿ
IF the building is actually 60 years old, then it was constructed on property of one of the predecessor roadways prior to MTA's creation.?ÿ It would seem (to me at least) an argument could me made that if there was a building on the property at the time the MTA's acquisition then it couldn't be integral to the transportation mission that the Authority was created for as it was unusable for transportation when it the system was acquired.
So, would be hard to argue (given only the facts posted) that the property in question is "integral to its transportation mission".?ÿ Good chance MTA has lost it to AP; should someone want to pay the attorneys fees to prove it (to make the transfer useful).?ÿ Similar law applies to the old RR's.?ÿ Sidetracks and such that were abandoned and not used for many years have been found proprietary and subject to AP, reversion, etc.. depending sometimes on whether purchased through negotiation, taken through condemnation, fee or right of way.
Make sure they carefully check the original easement agreement. Typically it is to allow the?ÿRR to control the maintenance of their track. That track is for the use of the estate owner on which that sidetrack easement exists. If the tracks still existed the railroad could not park a loaded RR car there for a third party to unload, it is strictly a limited use easement. The easement exists for the RR use as long as the land owner needs that use.
AP is not an issue as AP is against the landowner, which the RR is not. It is possible for the easement to continue to exist forever and the only thing the RR could ever use it for is for a sidetrack to serve that parcel. They could not sell it for any other use to a third party. I believe the landowner could file a document that it no longer requires a sidetrack and void the easement. I would ask the RR to pay six figures but would accept $1 going in either direction. As a matter of fact I have been involved in several $1 legal transactions over the years and golly I never got or gave the actual dollar.
Paul in PA
"AP is not an issue as AP is against the landowner, which the RR is not."
The established rule is that the maintenance of a fence or structure across an existing right of way which bars its use as such for more than the prescriptive period will terminate the easement by adverse possession ??
?ÿ- Castle Associates v. Schwartz: 63 A.D.2d 481; 407 N.Y.S.2d 717 (1978)?ÿ
Found this in?ÿ25 Am. Jur. 2d Easements and Licenses?ÿ?? 85. Abandonment:
Under New York law, in order to demonstrate abandonment of an easement, plaintiff must establish both an intention to abandon and also some overt act or failure to act which carries the implication that the owner neither claims nor retains any interest in the easement; it is not enough to demonstrate mere nonuse. Romanoff Equities, Inc. v. United States, 119 Fed. Cl. 76 (2014).
AND
Nonuse alone ordinarily does not result in abandonment, 3 and an easement acquired by grant or reservation cannot be lost by mere nonuse, no matter how long continued. 4 An easement granted for a specific purpose may be deemed abandoned when its owner renders the use of the easement impossible or obstructs it in a manner inconsistent with its further enjoyment. 5
The abandonment of an easement must involve clear, unequivocal, and decisive acts by the owner of the dominant estate showing a present intent to abandon. 6 It is also necessary to prove that the holder of the easement acted voluntarily. 7
25 Am. Jur. 2d Easements and Licenses,?ÿ?? 89.Adverse possession:
An easement may be extinguished by adverse possession. 1 To claim adverse possession of an easement, the servient owner must prove exclusive, 2 continuous, 3 and open and notorious use of the easement area 4 adverse to the easement holder's right to use the easement, 5 for a specified period 6 by clear and convincing evidence, 7 and the burden on the servient estate owner to prove unreasonable interference with an unused easement is high. 8
The prescriptive period is triggered where the use of the easement unreasonably interferes with the current or prospective use of the easement by the easement holder. 9 Only use that is incompatible or irreconcilable with the easement holder's authorized right of use is sufficient to justify terminating an easement by adverse possession. 10 A party claiming to have terminated an easement by adverse possession must prove that the use interferes significantly enough with the easement owner's enjoyment of the easement to give notice that the easement is under threat. 11 Determining what constitutes unreasonable interference will be heavily fact dependent. 12 Where the easement holder has not used the easement for some time, or at all, the servient estate owner enjoys wide latitude with respect to use of the easement area, and a showing of extensive activity will be required to demonstrate adversity. 13 Temporary improvements to an unused easement area that are easily and cheaply removed will not trigger the prescriptive period; however, permanent and expensive improvements that are difficult and damaging to remove will trigger the prescriptive period. 14
Where the acts of the servient tenant render the use of only part of a right of way impossible, the easement is extinguished
only as to that part. 15
Observation:
While a claim to terminate an easement by abandonment focuses on the conduct of the easement holder, a claim to terminate an easement by adverse possession focuses on the nature of the use of the easement area. 16
-Break-
3 Tiffany Real Property, Chapter 14 Easements, ??825 & ??827 (3d ed.) discuss abandonment and adverse possession with more cites to NY cases.
Wouldn't removal of the tracks show intent to abandon?
And that's the ticket. Passive anandonment does not have the crown related limitations in nearly as many states as AP. The common prescriptive period is 5 years, nearly always shorter than AP...
The problem appears to be proving the easement owner abandoned the easement by its acts (for example removing the tracks and RR structures).?ÿ The building was built by the servient estate which doesn't necessarily go to abandonment by the dominant estate.?ÿ Adverse Possession is concerned with the acts of the servient estate making the easement unusable mainly by building a building.
By removing the sidetrack and switch to it the RR overtly shows no interest in the use of the easement, thus it is abandoned.
Paul in PA