Property Rights Foundation of America®

from Proceedings of the Second Annual New York Conference on Private Property Rights (PRFA, 1996)

Rails to Trails - New York Litigation Over
Reversionary Rights of Landowners
D. Alan Wrigley
Attorney, Cambridge, N.Y.

I'd like to give you a brief background as to the history of our issue, then discuss some of the legal issues that were written on the matter, then give you a current status as to where we are today.

Washington County is located forty-five minutes northeast of here. It runs along the Vermont border. Back in the 1850's, the railroads started growing, and they started acquiring land in Washington County through various processes. There were various railroads at that time. The Washington and Rutland Railroad, the Saratoga and Rutland, and most of these through the 1850's. Through the years the railroads changed hands, and ultimately, the railroad corridor became known as the D&H [Delaware & Hudson] Railroad.

In 1979, the last D&H railroad train ran. In 1981 they filed notices of abandonment of their railroad bed. Then in 1982, the property was conveyed to the New York State Urban Development Corporation. There are still some tracks there that are in use. The part I'm going to talk about is the part where the rails have really been ripped up. In 1983-84, which is shortly after when the Urban Development Corporation acquired the land, is when the rails were ripped up. Since then the trails have been misused by various parties for snowmobiling and other types of access, without legitimate authority to be there using them that way. In 1981, the Urban Development Corporation, by quitclaim deed, deeded the land to New York State Office of Parks, Recreation, and Historic Preservation. Then Parks began a program attempting to convert the unused portions of the railroad tracks into a recreational trail.

There are essentially four parts of the former railroad bed. Parts of it are still in use. The Northeast New York Railroad Preservation Group, a not-for-profit corporation, owns a section of the still-existing and operating part of the track. They lease the track to the Battenkill Railroad, which still runs freight trains on the railroad track. That part is the portion that runs through the towns of Salem, Jackson and Greenwich over to the Hudson River. The Northeast Rail also runs a passenger railroad service from Salem to a little hamlet called Shushan which is also in the town of Salem. That use of the track has actually grown quite a bit over the last few years, and they're doing quite well. They're running trains right now. They generally don't run in the winter, but they run all through the summer season.

The next portion of the track is a portion that is in, shall we say, no man's land, cyberspace, purgatory, whatever you want to call it. There is a portion of the track, probably only a half a mile, that is still owned by the Urban Development Corporation. It runs behind the Salem Central School, then connects up with the rest of the property.

The next section is the section that I have been representing the adjoining landowners on, and that is the section that is now owned by the New York State Parks, Recreation and Historic Preservation. It runs about four and a half miles from the village of Salem to the Vermont border. Another section that the Office of Parks owns is up in Granville. It's not continuous with the other sections, but it does connect up to sections of the former railroad bed in Vermont. The concept, I think, was that a recreation trail was going to be created for snowmobiles or possibly for non-motorized use, but they really wanted it for snowmobiles, I believe, to run down from Granville and connect all the trails that are existing in Vermont on former railroad beds, then back into the State of New York in Salem, then back down into the village.

What are the legal issues involved in this? Well, I represent land owners who have a variety of ownership interests in the railroad bed. When the railroads began acquiring the property, they acquired it in various ways. In 1848 and 1849, there were statutes passed by New York State that would allow the railroads to condemn the property, with compensation to the owners, and then be able to use it for railroad purposes. So, some of the property was taken through condemnation proceedings. Then there were appraisers who were appointed who would come and determine what the value of the land was, and they would pay the landowners. There's some record of these condemnation proceedings and payments having then been made.

There are some cases where there is no deed at all, and no evidence of a condemnation proceeding ever having occurred. So, we are nowhere on those.

There are a couple of properties where land was conveyed to the railroad by the landowners.

There are other certain properties that were conveyed to the railroad by the landowners with a reversionary right. I'll read one of these deeds to you just so you can get a flavor for what the language was. It says, John Savage conveyed to the Troy and Rutland Railroad certain premises containing about 1.08 acres, "to have and to hold the above granted and bargained premises with the appurtenances of the said to the Troy and Rutland Railroad company, their successors, and assigns to their own proper use and behoof forever, so long as the same shall be used for a railroad bed, but no longer." Now, there is other language in other deeds that is very similar to that.

In the group of landlords that I represent, I have all categories of ownership: Deeds conveying out what may or may not have been a full title out of the property, deeds with reverters, combinations, and some missing awards, or missing deeds, we're not sure what.

Recently, there was a case decided by the New York State Appellate Division, which covers our district up here. In a Granville case, which is the other part of the railroad north of us, the State of New York sued several landowners because they had obstructed the railroad bed, the State sued on behalf of the New York State Office of Parks, Recreation and Historic Preservation, which was the titled owner to the property. In that proceeding, the original court determined that the State of New York had legal title of that property. When it went up to the Appellate Division, the decision was unanimous that in several instances the State of New York did not have title of the property, and in fact, that the title had to be turned back legally to the landowners. They did not discuss reverters in that case; they discussed the original legislation in 1848 and 1849. The reasoning in that case was that they determined that the enacting legislation enabled the railroad to condemn the property and obtain a leaseholder right-of-way of the property so long as they used it for railway purposes. Once it ceased use for railroad purposes, the land had to revert back to the then successors in interest of the original owners of the property.

By deciding that, particularly, unanimously, it has greatly helped our case in Salem, because we have a large group of landowners which have property in which there was a condemnation, then a subsequent award of compensation. So, we are now in a process of trying to establish where we are with each one of the property owners.

The current situation of the matter is as follows. I am in negotiations right now; we're not in litigation right now in our southern end of our railroad corridor. The State, having realized what they're faced with based on the Appellate Division case, has determined that they'll sit down and talk with us. We have tried with Parks and Recreation to achieve some resolution of this matter. They, for whatever reason, as yet, have been unable to decide what they're going to do. So, our next contact is the New York State Attorney General, who is basically the representing attorney for the New York State Office of Parks and Recreation and New York State. They're the ones who basically have to give an opinion as to who legally has the right to the property.

I recently had meetings with them and am in the process of preparing more documentation for them, in order to submit to them our claims to the property, parcel by parcel, and who owns what, and how they claim their title is derived. Hopefully, that will come to fruition sometime in the next few weeks. Then it will be a process of their reviewing that information and discussing it and granting opinions to the Office of Parks and Recreation. If we are successful in establishing our claims to a majority of the property, then we have yet the further step to go to the New York State Office of General Services and work with them to actually gain the legal title to the property. So, it is a long process, and it has been a long process.

I have to commend the landowners for their ability to withstand many years of problems involving this, and for their initiative in gathering a lot of facts and data for me. I've had one client who's called to the archives center in Washington, D.C. to forward him archival material. We've had archival maps from the railroads sent up to us which we've been able to review. They give the best evidence of the titles of the property, or at least a very good lead, that we can search back on, because they list mile marker and post by post how they acquired title to each property that they acquired.

Interestingly enough, when I came with all this data to the Office of Parks, they said, "Oh yeah, we've seen those maps, we know about those maps, we know all about all those claims to property."

It's also interesting, that in our digging, just by coincidence, I was at a closing in Columbia County and I was talking to a title searcher who was there. I happened to ask him, "Where do you work, etc. etc." It turned out he had worked in Albany for several years, I told him I lived and worked in Washington County, and he said, "Oh, Washington County, I did some work on a railroad project up there." It turns out, I was able to obtain from him copies of the title policies from when the State acquired the property originally.

In the title policies that were issued at the time, it clearly stated that there was no guarantee by the Federal Insurance Company of title to various parcels included. If you look at the deeds to the various parcels included, a lot of them include reverter clauses and other things. So I know that the State has this information.

So, we are fighting this battle. It's no where near as tough as the one we heard about this morning, but we are trying to retain for our clients what is rightfully theirs. As I say, I have to commend them for pursuing the battle and going forward with it. It's beautiful farm country, it's very usable land in order to produce quite a bit of crops for everyone, and it's justifiably their property. We're just trying to establish that sufficiently, hopefully without litigation, so that then they'll be able to have the property that's rightfully theirs.

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