Schenectady Chemicals, Inc. v. DeLuke Sand & Gravel Co.

• Decision Date: 11 April 1967
• Citation: 53 Misc.2d 383,278 N.Y.S.2d 953
• Parties: SCHENECTADY CHEMICALS, INC., Plaintiff, v. DeLUKE SAND AND GRAVEL CO., Inc., and the Mohawk National Bank, Defendants.
• Court: New York County Court

Page 953

278 N.Y.S.2d 953

53 Misc.2d 383

SCHENECTADY CHEMICALS, INC., Plaintiff, v. DeLUKE SAND AND GRAVEL CO., Inc., and the Mohawk National Bank, Defendants.

Schenectady County Court.

April 11, 1967.

Higgins, Roberts & Beyerl, Schenectady, for plaintiff. Robert J. Coan, Schenectady, of counsel, Richard E. Roberts, Schenectady, on Trial.

Borst, Smith, O'Loughlin, Smith & Abbey, Schenectady, for defendants. H. Richard Lewis, Schenectady, of counsel, Peter G. Abbey, Schenectady, on Trial.

ARCHIBALD C. WEMPLE, Judge.

The problem herein arises out of a proceeding in eminent domain commenced by the Boston Hoosac Tunnel & Western Railway Company by a petition dated May 2, 1883 to acquire certain parcels of land (including the property in suit) pursuant to 'An Act to authorize the formation of railroad corporations, and to regulate the same passed April 2, 1850 and the several acts amendatory thereof and supplemental thereto'. The title in the proceedings brought in Supreme Court Saratoga County recites 'to acquire title to lands of Jacob Mabee'. Fortunately the original petition and proceedings thereon have been located and were made available to the Court. The notice of petition to condemn described the parcels sought to be acquired and names the owners thereof. The petition, after reciting the incorporation of the petitioner in 1877 and its purpose of operating a railroad for public use in certain counties in New York State, then states in part as follows:

'That it caused the line or route of the railway proposed by said articles of association to be constructed, to be surveyed, and maps, profiles and surveys thereof to be made by and in which said route or line was and is designated, and that it located the said road according to such survey and duly filed in the office of the Clerk of each of the said counties a certificate of such location signed by a majority of the directors of said company and duly certified by the President and Chief Engineer of said Company.'

'That thereafter and on the 28th day of March 1883 the Directors of your petitioner by a vote of more than two thirds of their whole number altered and changed the part of the route of said railroad in the County of Schenectady it appearing to said directors that the line of your petitioners railroad could be improved thereby, and thereupon made a survey and map and profile of the route as so altered and intended to be adopted by it in the County of Schenectady and caused the same to be filed in the office of the Clerk of Schenectady County with a certificate of such alteration and change signed by more than two thirds of the Directors of your petitioner on the 31st day of March 1883.'

'That as your petitioner is informed and believes it has given written notice more than fifteen days since to all actual occupants of the land over which the route of the road as so changed and altered is so designated in the County of Schenectady and which has not been purchased by or given to the petitioner of the time and place such map was filed and that the route designated thereby passes over the land of such occupant.'

'That it is the intention of your petitioner in good faith to construct finish and maintain its railroad.'

'That the real estate described in Schedule A hereunto annexed and forming part of this petition is required for the purposes of the incorporation of said company, to wit, for the purpose of constructing and operating the said proposed railroad and that the petitioner has not been able to acquire the title thereto for the reasons that the owners thereof refuse to sell the same for any reasonable compensation.'

'Your petitioner therefore prays, with a view to acquire title to the said real estate for the purposes aforesaid, for the appointment of three disinterested and competent persons who reside in the County of Schenectady where the said real estate is situated or in some County adjacent to said County of Schenectady and who are freeholders, as commissioners to ascertain and appraise the compensation to be made to the owners or persons interested in the said real estate, pursuant to the provisions of the said act and for such other or further order as the Court may deem proper to grant.'

The survey or map referred to is also available and has been reviewed by the Court. Although neither the papers in the proceeding nor the map were offered in evidence, they were handed up to the Court at the conclusion of the trial and it is to be assumed that the parties intended them to become a part of the proof herein. These papers complete the proceedings showing the appointment of appraisers, testimony, fixing of compensation and order of confirmation. Certainly these original documents give first hand evidence of the purpose and intent expressed therein.

It is to be noted that the petition alludes to use of the lands 'to construct finish and maintain its railroad' and that the real estate is required for the 'purposes of the incorporation'. There is no mention of a plan 'to erect construct or maintain a freight or passenger depot' nor do the survey or proceedings indicate such a proposal. It can be concluded that no notice of 'depot' use was given to the property owners involved. In the case of Kip v. New York Central, 140 Misc. 62, 68--69, 250 N.Y.S. 5, 12, the Court commented:

'The testimony that was adduced in the condemnation proceedings, from beginning to end, is full of references to the specific depot use that was being made, and that was intended to be made, of the property in the future. The record of that proceeding clearly shows that the property was in fact sought to be condemned for depot purposes. Time and again, throughout the proceedings, reference was made to the effect that the taking of the fee was contemplated. Any doubt as to that is completely removed by the court decisions from which we have quoted. The Kips had ample notice that it was intended to pass the fee to the property, and it is significant that the full value of the property was paid to, and accepted by, them. See Thompson v. Orange & Rockland Electric Co., 254 N.Y. 366, 173 N.E. 224.'

Based on the proceedings in Boston Hoosac Tunnel and Western Railway Company vs. Mabee and others just what nature of estate was created--was it a permanent easement, later abandoned, as contended by the plaintiff, or a title in fee as contended by the defendant?

First, let us review the pleadings and proof:

Plaintiff alleges title by virtue of certain deeds acquiring the 'reversionary' interests acquired from the heirs of Jacob Mabee and sets up a satisfactory clain of title. Plaintiff alleges that it 'is the owner in fee absolute' and that the defendant DeLuke 'unjustly claims or might claim an interest' in the property by virtue of a deed in 1964 from the Boston and Maine Corporation (successor to the B. & M. Railroad which in turn was successor to the condemnor) to a P. & M. Gravel Corporation and then followed by a conveyance in 1964 to the defendant DeLuke.

Defendant in its answer merely denied on information and belief the allegations of the complaint. There was no affirmative defense of title or of adverse possession or claim of laches on the part of plaintiff. Defendant's proof was limited to its deed, its title search and the testimony of two former employees of the railroad that the area of Rotterdam Junction from 1890 to 1932 contained a large complex of repair, storage and transfer facilities. These witnesses were somewhat vague in their identification of the location of buildings and railroad operations in relation to the map in evidence. Admittedly they were not versed in map reading and the impression was given that substantial railroad facilities were maintained by B. & M. and N.Y. Central in the vicinity until 1932 and then discontinued. But, whether or not the land in dispute herein was actually included in the large railroad operation was not clearly established.

In fact, on a motion for...