People v. Helinski

• Decision Date: 07 December 1995
• Citation: 634 N.Y.S.2d 837,222 A.D.2d 788
• Parties: The PEOPLE of the State of New York, Respondent, v. Stanley HELINSKI et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 837

634 N.Y.S.2d 837

222 A.D.2d 788

The PEOPLE of the State of New York, Respondent, v. Stanley HELINSKI et al., Appellants.

Supreme Court, Appellate Division Third Department.

Dec. 7, 1995.

Newell & Toomey (Ronald L. Newell, of counsel), Glens Falls, for Stanley Helinski and Royal Harrison, appellants.

Bond, Schoeneck & King (Patrick L. Seely Jr., of counsel), Albany, for John Helinski, appellant.

Dennis C. Vacco, Attorney-General (Denis Hurley, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and WHITE, CASEY, PETERS and SPAIN, JJ.

MIKOLL, Justice Presiding.

Appeal from an order of the Supreme Court (Dier, J.), entered April 15, 1994 in Washington County, which, inter alia, granted plaintiff's motion for partial summary judgment on the issue of title to an abandoned railroad bed traversing the property of defendants.

This litigation involves the ownership of seven parcels of real property located in the Town of Granville, Washington County, upon which lies an abandoned railroad bed. Defendants John Helinski and Stanley Helinski are the owners of record of the property adjoining parcels 1 and 2; John Helinski, individually, is the record owner of the property adjoining parcel 3. Defendant Royal Harrison is the record owner of the property adjoining parcels 4, 5, 6 and 7.

Plaintiff alleges that it has fee simple absolute title to the railroad bed as successor to the Delaware & Hudson Railway Company (hereinafter D & H Railway) through a deed executed December 27, 1990, while defendants each assert that they have fee simple absolute title to the parcels traversing or adjoining their respective properties.

D & H Railway formally abandoned the railroad line in April 1985. In December 1990 it conveyed the railroad bed to plaintiff. Plaintiff subsequently commenced this action against defendants in August 1991, alleging trespass and seeking to recover possession of the railroad bed. Plaintiff then moved for inter alia, partial summary judgment as to ownership of the railroad bed and each defendant cross-moved for summary judgment. Supreme Court granted plaintiff's motion and denied defendants' cross motions. Defendants appeal.

The order of Supreme Court granting plaintiff's motion for partial summary judgment on the issue of title to the abandoned railroad bed over the Helinski property should be modified. Plaintiff's motion for partial summary judgment should be denied, the cross motions of John Helinski and Stanley Helinski should be granted and the cross motion of Harrison denied. Questions of fact exist as to the fee simple title to the railroad bed adjoining the Harrison property that should be resolved by a trial.

In 1833, Elijah Downs acquired, by three deeds, the property owned by John Helinski and Stanley Helinski. Downs thereafter mortgaged the property to, inter alia, Mason Hulet and William Broughton. Supreme Court erred in finding that plaintiff is the owner in fee simple absolute of parcel 1 based on an 1851 quitclaim deed from Nehemiah Hulet and Abigail Hulet (hereinafter collectively referred to as the Hulets) to the Troy & Rutland Railroad Company. The Hulets were mere mortgagees, not fee owners of the property. Plaintiff acknowledged that it never investigated whether the Hulets, who granted the quitclaim deed over 140 years ago, were vested with title to parcel 1 even though the quitclaim deed on its face only purported to convey a "conditional" interest, i.e., "title" founded on the mortgage given by Downs to Mason Hulet. The mortgage was thereafter satisfied. There is no deed transferring fee title to Downs' property to either the Hulets or to a railroad. The conveyance by the Hulets, who lacked a fee interest, did not convey any fee interest even though recitations purporting to do so appear in the deed (see, Schenectady Chems. v. De Luke Sand & Gravel Co., 29 A.D.2d 800, 286 N.Y.S.2d 902; Matter of Harlem Riv. Dr. [Coogan], 204 Misc. 565, 573, 122 N.Y.S.2d 290, affd 282 App.Div. 859, 124 N.Y.S.2d 842, affd 307 N.Y. 447, 121 N.E.2d 414).

Plaintiff does not assert that it has a deed conveying fee title to parcels 2 or 3. As to parcel 3, plaintiff claims that it is entitled to a presumption of lost grant. As to parcel 2, plaintiff contends that an 1851 record of payment by the Troy & Rutland Railroad to Broughton was likely the result of a condemnation proceeding under legislation passed in 1848 and 1849 authorizing the formation of railroad corporations to acquire property through condemnation and to build and operate railroads on the acquired property (see, L.1849, ch. 329; L.1848, ch. 140). An 1850 deed from the Troy & Rutland Railroad to the Rutland & Washington Railroad Company recites that such condemnation proceedings occurred. Moreover, the 1851 quitclaim deed from the Hulets to the Troy & Rutland Railroad and an 1857 deed from Downs to Broughton, excepting the portion of the property occupied by the railroad and conveying "reversions remainder", make reference to condemnation proceedings by the railroad. Plaintiff claims that fee title was acquired by the railroad as a result of the condemnation proceedings.

As to parcel 3, Supreme Court erroneously determined that plaintiff is entitled to a presumption of lost grant based on a finding that a deed conveying fee simple absolute title to plaintiff's predecessors is missing. The doctrine of presumption of a lost grant is a basis for claims of adverse possession and prescriptive rights (see, 4 Warren's Weed, New York Real Property, Presumptions, § 1.07 [4th ed]. However, the presumption operates where there is proof of adverse possession and the circumstances indicate a possibility of a grant (see, 4 Warren's Weed, New York Real Property, Presumptions, § 1.07 [4th ed]. Here, plaintiff is not entitled to rely on the presumption as to parcel 3 because John Helinski and Stanley Helinski have negated the presumption by establishing that the acquisition by plaintiff's predecessors of the railroad bed traversing their property was by way of condemnation proceedings. Plaintiff has not shown by clear and convincing evidence that any such deed to its predecessors ever existed and was properly executed (see, La Capria v. Bonazza, 153 A.D.2d 551, 544 N.Y.S.2d 848). Thus, plaintiff did not acquire fee simple title to parcel 3 via a presumption of lost grant.

Further, as the railroad acquired only an easement in the railroad bed by condemnation proceedings authorized by statute, its use of the property in conformity with the easement could not ripen into fee title by way of adverse possession (see, Matter of Harlem Riv. Dr. [Coogan], 307 N.Y. 447, 455, 121 N.E.2d 414, supra; Sackett v. O'Brien, 27 A.D.2d 979, 278 N.Y.S.2d 788, affd 23 N.Y.2d 883, 298 N.Y.S.2d 86, 245 N.E.2d 814). Plaintiff's citation to Long Island R.R. Co. v. Mulry, 212 N.Y. 108, 105 N.E....