Blog

Who owns the land?

Tompkins County and other government officials want the public to believe that NYSEG (New York State Electric and Gas Corporation) owns the former rail bed. However, the ownership of a long abandoned railroad right-of-way is not so straightforward.
Because of recent efforts to clearcut and surface the land for public recreation, the legal ownership of the abandoned rail bed has come into dispute.

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.

CCI15022017_3.jpgCCI15022017_4.jpg

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

According to trail web sites, there are already 73 trails existing in Tompkins County. These amount to 240 miles, 150 waterfalls, and access to 28,000 acres to explore. This is from their own data.

Obviously, there is no shortage of trails here in Tompkins County.

That pretty much takes care of tourists and their want and need for trails.

So, let us drop the notion that this very small portion is needed to expand tourism. This section will neither make or break tourists from coming to Tompkins County.

The next argument is convenience….the statement that someone or someone’s child, teenager etc (those were the examples stated at a recent Board meeting) can get to downtown Ithaca via a so-called safer avenue.

Let us look at the numbers…there are approximately 3500 people, plus or minus depending on the day, that live in the Town of Caroline.

Now, imagine that 100 people use this particular portion of the trail everyday all year around, that is less than 3% of the population.

We know that a 100 people are not going to use this …..more than likely it would be less than 20 and more likely 10 if not less…making it just less than a 100th of one percent and it won’t be everyday or year around.

Are we going to spend money on an MOU that requires detailed designs, plans and a budget for this project where at the MOST 3 % (and it is an exaggerated number of 100 people) that would use this fictitiously on a daily and on a year around basis and then expect to put 100% of the financial burden on 100% of the taxpayers?

The whole project should be dropped and not up for discussion as it was in 2008.

This is a major expense and tax burden on all the people of the Town of Caroline for a small percentage less than 3% at the most…more realistically less.

 

Rebecca S Phillips & Samuel W Phillips

 

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

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

To the Caroline Town Board 4/12/2017

As you probably know, Crystal and I recently sued the County over failure to follow the FOIL law in our attempt to find out what is going on with the County’s plans for our farm. The Judge ruled in our favor, and compelled the County to provide us with the drafts of the license agreement Planning Commissioner Ed Marx had negotiated with NYSEG and with his emails during the 6 month gap in emails provided during the period of negotiations in 2016. They did provide us with some drafts of license agreements, although they are incomplete, and they appear to still be refusing to acknowledge any communication took place during this period when so many decisions were made.

From the beginning, Mr Marx acted towards us as if he is above the law, so I am not really surprised. I assume he has unsavory activity to hide by concealing the emails, I can see no other reason for a public servant to treat the public and the Court with such contempt. We are in dialog with NYSEG ourselves at this point.

What we can see from the various drafts of the agreement is:

  • NYSEG grants without warranty of any kind to Licensee a revokable, non-exclusive license….subject to the rights granted to others for use of the right-of-way and subject to any prior fee conveyances as shown on the sketch attached hereto and made a part hereof”The sketch was NOT provided, of course. This clause calls the ownership a “right-of-way,” it is conditional on all of the existing landowner uses, and it is non exclusive, meaning those existing uses cannot be infringed on by the licensee.
  • Reviewing the various drafts, it appears the County tried to water down paragraph 24:“Licensee recognizes that NYSEG may have previously granted rights to other parties above, on or below the premises…Should any conflict arise with existing licenses, Licensee shall use their best efforts to resolve the same, If questions remain unresolved, NYSEG shall be the sole arbiter.” but NYSEG would not remove this clause. The Hilkers have a longstanding license agreement with NYSEG for their driveway, and the County has done nothing to resolve this conflict. This alone would void the License Agreement.
  • Paragraph 8: “Licensee shall not cause…a nuisance to persons adjacent to premises, to other licensees…” Clearly, the persons adjacent to the right-of-way would experience a nuisance.
  • The final clause added by NYSEG is telling. “Licensee shall not record this License in the County Clerk’s Office or any other place designated for recording or filing without the express written approval of NYSEG.” The boldface is NYSEG’s. Clearly they do not trust Mr Marx any more than we do.

Every one of these clauses points to an understanding that the County has and will continue to work this out with the landowners on a case by case basis, respecting all existing uses and developing a recreation way in a way that neighbors to not find a nuisance. From our point of view, this is laughable to ever expect given the outright hostility of Mr. Marx, Mr Witmer, and others towards each and every landowner over the years. But we do not know how Mr Marx characterized landowner negotiations to NYSEG in the missing emails, perhaps NYSEG was led to believe we all liked the idea.

I think anyone reading the license agreement can see how the Recreation Way as planned would never meet NYSEG’s terms.

On Monday, at the Danby Town Board meeting, Supervisor Deitrich wanted the Board to approve the MOU with the County (they did not) to force landowners to sue the Town and resolve the issue that way (he actually said that). We think this is absurd, we do not want litigation, we want our lives back, we want this nightmare to end, we want unity and a sense of community in the Town, we want the dialog we are engaged in with NYSEG to lead to clarity on ownership without the damage of yet another lawsuit. We think the best next step is for the Town to reject the MOU, to stop following Mr. Marx’s plan, and take time to consider what is best for the people of Caroline.

Sincerely,

Scott Van Gaasbeck

Landowner Letter to Caroline Board, April 4, 2017

April 4, 2017

Town of Caroline Board:

At the February 22, 2017 Town Board Business Meeting, at the request of many constituents, the Board agreed to schedule a meeting specifically to discuss issues related to the proposed South Hill Recreation Way Extension. On March 21, in response to an inquiry about the status of the meeting, Town Supervisor Mark Whitmer stated in an email that he was “working with Danby to schedule an informational meeting.” Today, a full six weeks since February 22, Mark informed the Coddington Land Stewards listserve that a meeting has been tentatively scheduled for Sunday, April 23 (time to be determined), at the Brooktondale Community Center.

Presuming that “working with Danby” refers to officials of the Town of Danby, I am puzzled as to why officials of another town are being included in this meeting. We (the constituents) requested to meet with our Caroline Town Board, not officials of other towns. We did request that affected RESIDENTS from the other towns be notified of the meeting; but to my recollection, this meeting was to be an opportunity for affected residents to review the proposed trail extension and the Caroline Natural Areas and Trails Committee Report (2008 Trail Report) with our elected Town Board members.

That Mark is considering this meeting to be an “informational” meeting is simply astounding. The concerned residents have seen the proposal. We’ve seen the websites. We’ve attended public meetings. We’ve perused the 2008 Trail Report. An “informational” meeting was already held by the County. I repeat, this meeting was to be an opportunity for affected residents to review the proposed trail extension and the 2008 Trail Report with our elected Town Board members.

Since this meeting should be a working meeting, not an informational meeting, it should be held at the Town Hall, not a community center.

In conclusion, I respectively request that the meeting agreed to on February 22 be promptly confirmed, that it be a thorough review of the issues with the Town Board members and affected residents, that affected residents of other towns be notified, and that it be held at the Caroline Town Hall.

Respectfully submitted by fax

Kathleen Boyd

149 Middaugh Rd, Brooktondale

Respectfully submitted by fax, to be distributed to all five Board members, read out load during the Privilege of the Floor, and entered into the record of this meeting that I submitted this statement.

Landowner Letter to Caroline Board, April 4, 2017

4/4/17

To the Caroline Town Board

Crystal and I have won our case against Tompkins County, as of yesterday Judge Rumsey found in our favor on all counts and ordered the County to release all drafts of the proposed NYSEG license agreement as well as some other documents by this coming Monday. The Judge appears to share our concern that Ed Marx deleted emails because he ordered an independent, certified search of all of his email accounts and the County’s backup system as well to look for deleted emails. That will take 3 weeks.

Landowners negotiations with NYSEG over overship of the right of way is progressing, with several developments in the last week that significantly strenthen our argument that the railroad sold NYSEG at most an easement, not ownership. NYSEG has yet to dispute our ownership claim, and we hope to be able to correct any deeds to reflect this once we have agreed on the nature of any easements. This will take some time, months most likely because of the enormously complicated titles.

Assuming the County complies with the Judge’s order, we will soon know what Ed Marx was so intent on keeping secret. Obviously it is likely to be in the landowners’ favor, and it is likely this Recreation Way project will not happen.

This would be a good time to begin to come together as a community around things we can agree on, and heal the distrust and dissapointment created over the last 9 years. Why then, are petitioners aggressively trying to get signatures by misleading people that it is the County that needs to be convinced to build a trail? Why was a parent and occasional teacher approaching people in the lobby of my daughter’s elementary school trying to get them to sign, and being not-so-nice if they refused? Why was the new owner of Brookton’s market misled that this was not a controversial issue when he was asked to place a petition there? A friend who teaches at the high school was giving an exam when he was interrupted by a petitioner, and when he said he did not support the trail, he had a hard time getting the petitioner to go away? The behavior by the people pushing for this recreation trail has been consistent from the beginning: dishonesty, disrespect for the residents of our valley who would be affected, and a disregard for the good of our community.

I want the members of the Town Board to know how much we appreciate the way you have listened and held off from any action while the facts come to light. This would be a good time to put an end to the whole thing to send a clear message to the public, to avoid further damage to our community.

Sincerely,

Scott Van Gaasbeck