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

• Citation: 286 N.Y.S.2d 902,29 A.D.2d 800
• Court: New York Supreme Court Appellate Division
• Decision Date: 16 February 1968
• Parties: SCHENECTADY CHEMICALS, INC., Respondent-Appellant, v. DeLUKE SAND & GRAVEL CO., Inc., Appellant-Respondent et al., Defendant.

Page 902

286 N.Y.S.2d 902

29 A.D.2d 800

SCHENECTADY CHEMICALS, INC., Respondent-Appellant, v. DeLUKE SAND & GRAVEL CO., Inc., Appellant-Respondent et al Defendant.

Supreme Court, Appellate Division, Third Department.

Feb. 16, 1968.

Borst, Smith, O'Loughlin, Smith & Abbey, Peter G. Abbey, Schenectady, for respondent-appellant.

Higgins, Roberts, Beyerl & Coan, Robert J. Coan, Schenectady, for appellant-respondent.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, STALEY and GABRIELLI, JJ.

HERLIHY, Justice.

Appeal by the defendant-appellant DeLuke Sand & Gravel Co., Inc. (hereinafter referred to as DeLuke) from an order and judgment determining certain claims to real property in favor of the plaintiff Schenectady Chemicals, Inc. (hereinafter referred to as Schenectady) and cross appeal by the plaintiff from a prior order of the court denying its motion for summary judgment. The proceeding was instituted pursuant to article 15 of the Real Property Actions and Proceedings Law.

Upon the trial DeLuke conceded that the only issue for determination was whether or not the subject real property was acquired by its predecessor in title for the railroad purpose of a 'freight depot'. The Railroad Act was amended in 1854 to provide that any land acquired for passenger and freight depots, shall be held by the company (Railroad) in fee. (See L.1854, ch. 282, § 17.) The original railroad condemnation proceedings instituted by the railroad, which property is here involved, did not indicate that the taking was for such purpose.

DeLuke contends on this appeal that the finding by the trial court that the parcel was not used for a freight depot is against the weight of the credible evidence.

A review of the record indicates that there may have been a depot in the vicinity of the subject property, but the testimony of DeLuke's witnesses was so indefinite and vague that at best there was created only an issue of fact and the finding by the court was not against the weight of evidence.

The record sustains the finding that the railroad acquired a permanent easement in the property which was terminated when it sold the property for non-railroad purposes and that the title and right to possession reverted to the original grantor and that Schenectady acquired title from the heirs. The railroad, never having acquired a fee, could not, therefore, convey such rights and title to DeLuke's predecessors in title. (O & W Lines, Inc. v. St. John, 20 N.Y.2d 17, 20, 281 N.Y.S.2d...