Landowner Letter to the Town of Caroline Board, April 12, 2017

To the Caroline Town Board April 12, 2017

Since there seem to still be misunderstandings about the ownership of the right-of-way, and since our attorneys are already in discussion with NYSEG, at this point we can share some of the legal nitty-gritty behind ownership of the abandoned railbed. This is some of what the lawyers are looking at; we are not expecting you to be lawyers, but hopefully it will give the Board a more complete understanding of what we are talking about when we say we own the land.

Briefly, the Ithaca and Owego RR was incorporated in 1828, built circa 1831, bankrupt in 1842, reconstituted as the Cayuga and Susquehanna RR with a new route on the Ithaca end, sold to what became the Delaware, Lackawanna & Western, and abandoned in 1956 after proper ICC proceedings. Many deeds are referenced below, which can be found at the County Clerk. To own “in fee” means to own title to the land itself, an “easement” is permission to use someone else’s land for a specified purpose under certain conditions, like powerlines, an access road, etc.

In 1960 NYSEG purchased both the right-of-way and a few parcels of land owned in fee from the railroad, reputedly paying $500 for the right-of-way. (Tompkins County Deeds 429/215). Their quit-claim deed states “All that portion of the right-of-way and lands of the former Ithaca Branch of the railroad…” At least one of these parcels (161/42) lies entirely within the bounds of the right-of-way, proving that the author of the deed intended a separate conveyance for the right-of-way, presumably some form of easement. The railroad, however, was officially abandoned in 1956, and all easements reverted by law to the estate from which they had been taken.

The only preceding deed for the original right-of-way was from the president of the Ithaca & Owego RR to Archibald McIntyre, dated 6/22/1842, recorded Tompkins County deeds RR/157 (McIntyre, the former State Comptroller, purchased the bankrupt railroad from the current State Comptroller for $13,500)

After enumerating the equipment and chattel, and “other old stuff” the land rights are conveyed, with the following language, which would make it appear the owners of the I&O RR, incorporated just 14 years previous, believe they do not have any proof of title to convey, but might have “promises and leases

….And the said parties of the first part in consideration aforesaid hereby do further covanent bargain with the party of the second part & by these mentions do sell, transfer assign & quit claim unto the` part of the second part and to his assigns forever all singular the residuary rights, interest, & claims whatsoever which the said party of the first part may have in & to any land, tenement, fixtures, fences, or any & all the appurtenances to or about the said Ithaca & Owego Rail Road & to assign all title whatsoever they be, either by with deeds, promises or as leases which the said parties of the first part may have in or about the premises and the said parties of the first part further covenent and agree to aid & assist the said party of the second part in procuring such information in relation to the title of lands, surveys estimates, & maps of said Rail Road as may be in the possession of the said party of the first part granting full access to all books & papers necessary for such purposes”

Circa 1849, McIntyre’s new company, the Cayuga and Susquehanna Railroad, closed the “inclined plane” system to winch trains up the hill near Morse Chain, and built a new switchbacked route, including the northern part of the right-of-way in question. At this time the old route, defined in Z/239 reverted to the adjacent landowners and no longer exists as an easement. (Likewise, the rest of the original right-of-way was abandoned in 1956 and reverted). Influenced perhaps by the lousy deed McIntyre received from the I&O RR, the C&S RR diligently went to landowners and got easements for the new route, many of which have strong reversionary clauses such as “the premises hereby conveyed are to be used for no other purpose than a Rail Road…and when the premises are no longer used for railroad purposes they are to revert to the parties of the first part with the appurtenances and all the estate title and interest of the said parties of the first part” (55/9) and “The premises hereby conveyed to be used for rail Road purposes only and when no longer so used to revert to the parties of the first part with the appurtenances and all the estate title & interest of the said parties of the first part therein.” (55/6) and “to be used for Rail Road purposes & no other & when no longer so used to revert to the parties of the first part with all the appurtenances & all the estate title & interest of the said party of the first part therein” (55/5). See also 55/13, 54/521.

Clearly, 61 years after the abandonment of the railroad, no easement exists. NYSEG bought the Brooklyn Bridge, and 3 small parcels of land. Because NYSEG provides a service we all enjoy, no one questioned NYSEG’s desire to route utilities on the former right-of-way, and no one protested. Through the years farmers and homeowners have used the land as their own, and NYSEG has neither complained nor made any effort to maintain or post the land, except where a gas pipeline crosses it. Since the late 1990’s, NYSEG has listed the right-of-way with the NY PSC as “non-utility property formerly held for future use” with a value of $10,824 for the entire right-of-way from Ithaca to Owego, clearly a value for an easement.

There were two 19th century Court cases in which the Courts made a determination of the railroad’s property interests. The first was in 1855, Brown v. C&S RR, in which the C&S RR claimed it was not responsible for the flooding of an adjacent landowner’s land due to the undersized culvert on a stream crossing of its right-of-way. The Judge found that even though they had only an easement, they were still liable: “the corporation, not being owners, required legislative authority to cross [watercourses] with their road. This the Act gives them… They were bound, in crossing the stream with their road, by the same obligation which would have bound a private owner of the land and stream had he bridged it.” In the second case, People ex Rel. City of Ithaca v. Delaware, Lackawanna and Western RR and C&S RR (11 App. Div. 280, 1896), the Court required the railroad allow a new city road to cross their line, on the grounds that the railroad had deeds which described mere easements, due to the reversionary clauses, and not fee simple title to the right-of-way.

The deeds to the farm currently owned by the Van Gaasbecks, going back to before the railroad existed, show no fee ownership by the railroad, but merely a reversionary easement. On the south part of the farm, no mention of the railroad is made at all until 1842, at which point “excepting the right of the Ithaca and Owego Railroad (if any they have) of running their rail road through said premises” was added in a deed from and authored by Cyrus Beers to Abram Bates (QQ/226). Cyrus Beers was perhaps better acquainted with the ownership of the right of way than anyone, as he was appointed Commissioner of Deeds for Ithaca in 1837, and he served as a delegate to the New York and Erie Railroad convention in 1839. The north portion of the farm did not mention the railroad until 1836, from that date on the centerline of the railroad was used as the west boundary of the farm, and the clause additionally including “all the privileges that the party of the first part would have in and to that portion of the railroad lying west of said farm if it should cease to be a road” was included in every deed written until 1998. see HH/4, NN/52-, XX/97, 64/376, 179/195, 354/222, 446/1064. Virginia Miller and Mary Beth O’Conner’s land came from the same Bates farm as the Van Gaasbeck’s and has the same title history.

In 2008, Sandra Kenne’s attorney Scott Miller (now a Judge) had title research done, contacted NYSEG, and determined NYSEG had no more than an easement on the Middaugh homestead. All up and down the line, we find many landowners with deeds showing ownership.

The issue has been raised that NYSEG has paid taxes on the right-of-way. It was typical for railroads to pay an additional property tax on the value of their tracks, and it is not uncommon for easements to be shown on tax maps for this reason. NYSEG has been paying about $30/yr for the ¼ mile of easement through our 46 acre farm, we pay close to $6,000. The Courts have shown paying property tax does not create ownership.

The attorneys for the land owners are currently in discussion with NYSEG with the goal of further clarifying the nature, if any, of NYSEG’s right-of-way. We do not anticipate litigation. Obviously, due to the complexity, age and large number of deeds, this process will take time to sort out.

Any action by the Town at this point is not only premature, it causes harm by imposing great expense on landowners to defend their property rights, and by falsely leading members of the larger community to believe the land is not private property, and it will somehow be made available for their recreation. The Town’s actions have already damaged the market value of every property on this 3 mile stretch, and caused untold stress and financial strain. To continue pushing this project forward at this point constitutes spending the Town’s resources and our sense of community to destroy 70 people’s peace and property. The Supervisor is obviously personally attached to this project no matter how much damage it causes. We ask the rest of the Town Board, elected to represent us all, to move to closure, and move on to providing these people with internet access and other work the entire Town can come together on.

Scott and Crystal Van Gaasbeck

58 Middaugh Rd

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