The Highline and the Romanoff Case

The Highline has been a very successful park.  It was opened to the public in 2009.  It begins at Gansevoort Street in the Meat Packing District and continues to West 34th Street between 10th and 12th Avenues in Manhattan.  It is, to say the least, wildly popular and crowded with tourists taking advantage of the dramatic views.

Last week, Owners’ Counsel of America filed an Amici brief in Romanoff Equities, Inc. v United States, No. 15-5034 (Fed. Cir. March 10, 2016), a rails to trial taking case pending in the Federal Circuit.

As the press release drafted by Cathy Newman, OCA’s Executive Director, states:

“The brief urges the U.S Court of Appeals to rehear the recent panel decision affirming a decision of the Court of Federal Claims concluding that an easement granted to New York Central Railroad in 1932 for “railroad purposes” was broad enough to encompass future recreational use of the elevated railroad.  The Federal Appellate Court further determined that the words in the original easement “for railroad purposes and for such other purposes as the Railroad Company…may…desire to make” indicate that the easement was a “general” easement which allowed the Railroad Company to not only use the easement for rail transportation, but also for any other use it desired.  Therefore, the reversionary property owner was not entitled to compensation when the railroad abandoned use of the elevated rail line and transferred its easement rights to the City of New York for the Highline public park.

Amici argues that the Court of Appeals should not have guessed as to how New York courts would have viewed the easement language but rather should have certified the question to New York’s highest court.”

As the New York member of Owner’s Counsel of America, I participated in drafting the brief.  My review of the case indicated clear error by the U.S. Court of Federal Claims.

Although the United States Court of Federal Claims cited New York City Council v City of New York, 4 AD3d 85, 770 NYS2d 346 (1st Dept 2004), in its decision in Romanoff Equities, Inc. v United States, 119 Fed. Cl. 76, 79 (2014), it would appear it did not carefully read the decision.

The Court of Federal Claims’ decision was focused on language of the original grant of easement.  The Court of Appeals for the Federal Circuit affirmed based on its interpretation of the language of the grant.  Romanoff Equities, Inc. v United States, 2016 U.S. App. Lexis 4436 (2016).

Since the Court of Claims was bound by New York Law, Preseault v United States, 100 F. 3d 1525, 1533 (Fed. Cir. 1996), it was compelled to follow New York City Council v City of New York, supra, 4 AD3d 85, 770 NYS2d 346, which held that the easement ended by virtue of the New York Central’s surrender of the easements relating to the Highline back to the 23 servient owners.  The Appellate Division held that the property owners reacquiring the easements simply removed an encumbrance from their properties.  The Court quoted Alfassa v Herskowitz, 239 AD2d 307, 308, 657 NY2d 10003 (1997), “It is fundamental that where the title in fee to both the dominant and servient tenants become vested in one person, an easement is extinguished (by merger).”  Because the process of merger represents the extinction, not the conveyance, of an interest in real estate, no acquisition of real property was contemplated.  4 AD3d 85, 89-90.

As is set forth in New York City Council, on December 20, 2001, the City, New York Central and the owners of the 22 parcels of private land burdened by the Highline and others executed an agreement titled “Agreement for Voluntary Abandonment and for Charitable Contribution.”  4AD3d 85, at 88.  The Court further stated, “[b]ecause the process of merger represents the extinction, not the conveyance, of an interest in real estate, no acquisition of real property was contemplated by the Agreement.”  Ibid, at page 90.

Thus, any easement ended since it was merged in the Fee upon the execution of the agreement.

The Court of Federal Claims also violated New York Law by improperly expanding the easement, if it existed, to include a public park.  Contrary to the Lower Court’s finding, the easement was not “quite broad.”  119 Fed. Cl. 76, 81.

The easement was “for railroad purposes and for such other purposes as the railroad company, its successors and assigns, may from time to time or at any time desire to make use of the same.”  (Ibid.)

The history of the Highline was set forth in New York City Council v City of New York, 2002 N.Y. Misc. Lexis 232 (Sup. Ct., N.Y. Co. 2002) rev. 4 AD3d 85 (1st Dept 2004) apl. den. 4 NY3d 701 (2004).  The Highline has its historical roots as a railroad grade crossing elimination.  See Transit Commission v Long Island R. Co., 253 N.Y. 345, 171 N.E. 565 (1930).

Pursuant to legislation, in 1934, and as a result of New York Central’s West Side Improvement Project, Manhattan’s West Side Line became a 13 mile long elevated rail line.  The elevated track ran to and through buildings and warehouses, without disrupting street traffic.  By the mid-1970s, the elevated track was no longer used.  New York Council, supra.  Thus, the clear intention of the easement as authorized by the legislature was to enable the railroad to eliminate grade crossings.  The addition of one sentence by a Scribner to the grant of easement cannot alter the scope or intention of the easement.

New York Law is well established.

An instrument creating an estate or interest in real estate must be construed according to the intent of the parties, insofar as such intent can be determined from the entire instrument.  Real Property Law Sec. 240 (3); Mandia v King Libr. & Plywood, 179 AD2d 150, 158, 583 NYS2d 5 (2d Dept 1992).

Here we have a very specific easement which was for railroad purposes to eliminate grade crossings.  But even if the easement could be said to be granted in general terms, the rule of construction is to construe the extent of its use as is “necessary and convenient for the purpose for which it is created.”  Mandia v King Libr. & Plywood, supra, at 158, which includes “any reasonable use to which it may be devoted, provided the use is lawful and is one contemplated by the grant.”  Phillips v Jacobsen, 117 AD2d 785, 786, 499 NYS2d 428, 429 (2d Dept 1986).

It simply cannot be held that the use of the Highline as a park was contemplated when the grant was made.

The full Amicus brief can be read on the author Robert Thomas, Esq.’s excellent blog  It appeared on May 5, 2016.

Posted in Eminent Domain, Litigation, New York, Public Parkland, Rails-to-Trails
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