Romanoff Equities, Inc. v. United States , 815 F.3d 809 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
ROMANOFF EQUITIES, INC.,
Plaintiff-Appellant
437-51 WEST 13TH STREET LLC,
LIRON REALTY, INC.,
Plaintiffs
v.
UNITED STATES,
Defendant-Appellee
______________________
2015-5034
______________________
Appeal from the United States Court of Federal
Claims in No. 1:11-cv-00374-NBF, Senior Judge Nancy B.
Firestone.
______________________
Decided: March 10, 2016
______________________
MARK F. (THOR) HEARNE II, Arent Fox, LLP, Clayton,
MO, argued for plaintiff-appellant. Also represented by
MEGHAN SUE LARGENT.
EMILY M. MEEKER, Environment and Natural Re-
sources Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by JOHN C. CRUDEN.
2 ROMANOFF EQUITIES, INC. v. US
______________________
Before NEWMAN, LOURIE, and BRYSON, Circuit Judges.
BRYSON, Circuit Judge.
The High Line is an elevated “linear park” in New
York City that runs along the west side of Manhattan
from Gansevoort Street to 34th Street. The park, which is
used for walking, jogging, and other recreational purpos-
es, occupies the elevated viaduct of a former railway line.
In 2005, the elevated viaduct was converted to a public
recreational trail under the authority of the National
Trails System Act, 16 U.S.C. §§ 1241-49. In this takings
action, the appellant, Romanoff Equities, Inc., contends
that the conversion of the railway property to a trail
entailed a taking of its property without just compensa-
tion. The Court of Federal Claims held, on summary
judgment, that the conversion did not result in a taking of
Romanoff’s property. We agree with the analysis of the
trial court and therefore affirm.
I
In 1932 the New York State Realty and Terminal
Company granted an easement to the New York Central
Railroad Company (“the New York Central”), an affiliated
entity, to allow for the construction and maintenance of
an elevated railroad corridor on the west side of Manhat-
tan adjacent to Tenth Avenue. The purpose of the elevat-
ed railroad was to replace the ground-level railroad then
in use, in order to eliminate dangerous grade-level road
crossings. The easement covered a roadway that ran
above the street level and was wide enough for a rail line
and associated stations.
The elevated railroad was constructed and operated
for approximately 50 years. It ceased operations in the
mid-1970s. By 1982 Conrail, then the successor to the
New York Central, had removed the stations and tracks
ROMANOFF EQUITIES, INC. v. US 3
along the roadway. Various other uses for the property
were considered, such as a highway or a waste disposal
service, but were not implemented. In 1989, the owners
of property along the viaduct initiated an adverse aban-
donment proceeding before the Interstate Commerce
Commission (the predecessor to the United States Surface
Transportation Board), seeking to have the easement
declared abandoned. In 1992, the Commission ruled that
an abandonment of the easement would be declared if the
property owners filed a bond to cover demolition costs, but
no such bond was filed.
In 1999, Romanoff acquired certain property that was
traversed by the viaduct and was subject to the easement.
At that time, no determination had been made as to
whether the viaduct would be removed or used for some
other purpose. Subsequently, a non-profit entity began
urging that the viaduct be converted to use as a public
space, subject to possible reactivation as a rail line.
Following negotiations with the City and the railroad
company’s successors, including Conrail and CSX, the
Surface Transportation Board in 2005 issued a Certificate
of Interim Trail Use for the elevated right of way. Based
on that authority, the viaduct was converted into the
High Line Park.
In 2011, Romanoff filed suit in the Court of Federal
Claims. Romanoff principally contended that the ease-
ment originally granted to the railroad did not authorize
the use of the rail corridor for park purposes. For that
reason, Romanoff argued that the conversion of the rail-
road viaduct into a park constituted an appropriation of
Romanoff’s property by the United States for which
Romanoff was constitutionally entitled to be compensated.
The Court of Federal Claims rejected Romanoff’s
claim. The court relied on the broad language of the
original easement granted to the New York Central. The
language in question grants the railroad and “its succes-
4 ROMANOFF EQUITIES, INC. v. US
sors and assigns forever, the permanent and perpetual
rights and easements” within the described area, “togeth-
er with the exclusive use of the portion of the parcels of
land herein described . . . for railroad purposes and for
such other purposes as the Railroad Company, its succes-
sors and assigns, may from time to time or at any time or
times desire to make use of the same.” (emphasis added).
The court held that the broad grant of the easement
“for such other purposes” as the railroad company and its
successors desired to make of it, was broad enough to
encompass the use of the property for a park. As a result,
the court held, the easement did not terminate when the
railroad company and its successors no longer used the
property for railroad purposes. The court therefore con-
cluded that Romanoff had no property rights that were
terminated or impaired by the construction and mainte-
nance of the High Line Park on the site where the rail-
road had previously operated. The court also rejected
Romanoff’s argument that the easement had been aban-
doned when the railroad company ceased using it for
railroad purposes, and that all rights in the property had
reverted to Romanoff before the Surface Transportation
Board authorized its conversion into and use as a park.
II
Romanoff’s principal argument on appeal is that the
1932 easement granted to the New York Central was
limited to railroad use and did not authorize the succes-
sors of the New York Central to use the property for other
purposes, such as a park. That argument fails in light of
the sweeping breadth of the easement grant. The ease-
ment was specifically not limited to the use of the proper-
ty for railroad purposes, but stated that the property
could be used “for railroad purposes and for such other
purposes as the Railroad Company, its successors and
assigns, may from time to time or at any time or times
desire to make use of the same.” As the Court of Federal
ROMANOFF EQUITIES, INC. v. US 5
Claims held, it is not possible to read that language as
limiting the easement to railroad purposes when it says,
explicitly, that the easement applies not only if the prop-
erty is used “for railroad purposes,” but also if it is used
“for such other purposes” as the railroad company and its
successors and assigns may desire.
A
Romanoff makes several arguments in support of its
effort to escape the broad language of the easement grant,
but none is persuasive.
First, Romanoff argues that under New York law, an
easement is limited to the uses contemplated by the
parties when the easement was granted. 1 Romanoff
contends that the parties contemplated only that the
property would be used for railroad purposes and that the
easement cannot be construed to permit the use of the
property for non-railroad purposes such as a park.
The problem with Romanoff’s argument is that in de-
termining the purpose for which an easement is granted,
New York law requires that the intent of the parties be
determined based on the language of the grant. See Dowd
v. Ahr, 583 N.E.2d 911, 913 (N.Y. 1991) (“Easements by
express grant are construed to give effect to the parties’
intent, as manifested by the language of the grant.”);
Edge Mgmt. Consulting, Inc. v. Blank, 807 N.Y.S.2d 353,
368-69 (App. Div. 2006) (the terms of an agreement are
the best evidence of the parties’ intent). In this case, the
language of the grant is not limited to railroad purposes,
but expressly includes other purposes for which the
1 “Property interests rely on the law of the state
where the property is located,” Mildenberger v. United
States, 643 F.3d 938, 948 (Fed. Cir. 2011), so in this case
we look to New York law to interpret the scope of the
grant.
6 ROMANOFF EQUITIES, INC. v. US
grantee or its successors may desire to use the property.
Limiting the scope of the easement to the purposes re-
vealed by the granting instrument is therefore of no help
to Romanoff. 2
Romanoff cites a number of cases for the proposition
that the scope of an easement is limited to the purposes
contemplated by the parties at the time of the agreement
that created the easement. In each of those cases, howev-
er, the easement was limited to a specific purpose. None
of the granting instruments contained language such as
the language found in the easement at issue in this case,
which not only does not limit the purpose for which the
easement is granted, but explicitly states that the purpos-
es extend to any purpose for which the grantee and its
successors wish to use the property.
Romanoff’s next argument is that the trial court’s rul-
ing as to the scope of the easement is at odds with the
purpose of the easement, as determined from the entire
10-page granting document. Romanoff points out that
2 In its briefs, Romanoff quotes (nine times) the
statement by the trial judge that “the parties at the time
the easement was granted could not foresee use of the
corridor for a public trail and park” as support for its
contention that the parties to the easement did not intend
the easement to be used for non-railroad purposes. In
fact, however, the court’s comment was directed to the
quite different point that in light of the breadth of the
grant, it did not matter that the specific purpose of use for
a public trail and park was not in the parties’ contempla-
tion, as is clear from the full text of the court’s statement
(“Moreover, having agreed to allow the Railroad, its
successors and assigns to use the corridor for any lawful
purpose, it is irrelevant that the parties at the time the
easement was granted could not foresee use of the corri-
dor for a public trail and park.”).
ROMANOFF EQUITIES, INC. v. US 7
much of the document relates to the details of the pro-
posed railroad use of the property, and the reference to
other uses is found in only a single sentence. Romanoff
states that upon reading the entire document, “it is im-
possible to honestly conclude Realty Company and New
York Central Railroad intended the 1932 Easement to
grant New York City the right to use the property for
anything it ‘desired.’” The problem with that argument is
that New York City is clearly a “successor” to the New
York Central, 3 and the document plainly authorizes such
a successor to use the property “for such other purposes
[as it may] desire to make use of the same.” Thus, the
text of the granting document is exactly contrary to
Romanoff’s argument that such a reading is “impossible.”
Next, Romanoff argues that the use of the term “such”
in the granting document limits the uses of the easement
to railroad uses. The argument is that the term “such” is
a limiting term that constrains the “other purposes” for
which the easement can be used to railroad purposes. As
an example of the limiting nature of the word “such,”
Romanoff offers the sentence “My sister doesn’t particu-
3 Romanoff briefly contends that New York City is
not a “successor” to the New York Central, even though
the property rights of the railroad were conveyed through
several successors and ultimately to the City. Romanoff’s
contention is that when a right-of-way easement is grant-
ed to a railroad and the railroad’s successors and assigns,
the class of successors and assigns is limited to successor
railroads. The case on which Romanoff relies for that
proposition, however, was one in which the easement was
specifically limited to railroad purposes. Where, as here,
the easement is not limited to railroad purposes, there is
no logical reason to construe the term “successor” to be
limited to a railroad corporation with a franchise to
operate the railway line, as Romanoff contends.
8 ROMANOFF EQUITIES, INC. v. US
larly enjoy talking with such people,” where the word
“such” is limited to a group of people already identified.
While the term “such” can have a limiting effect in
some settings, it does not have that effect in the context of
the 1932 easement. There, context makes it quite clear
that the word “such” is used to mean “any” or “whatever,”
and is not limiting. The phrase “for such other purposes
as the Railroad Company . . . may . . . desire” means “for
any purposes” or “for whatever purposes” the Railroad
Company may desire, as in the sentence “You may invite
your classmates, your roommates, and such other friends
as you choose.” In that setting the reference to “such
other friends” is clearly not limited to classmates and
roommates. Moreover, as the government aptly notes,
this reading would result in the pertinent clause permit-
ting the use of the property “for railroad purposes and
such other railroad purposes,” an interpretation that
would be nonsensical. 4
B
Stepping back from analysis of the language of the
easement, Romanoff makes the broader argument that
New York law does not recognize a “general easement”
that would permit the property in question to be used for
any purpose. Romanoff does not point to any authority
4 The term “such” is clearly used, elsewhere within
the 1932 easement deed, to mean “any” or “whatever.”
For example, the deed gives the New York Central “the
right, upon reasonable notice, to enter at reasonable
hours in and upon the building, buildings or other struc-
tures above or below the Easement Area as to the particu-
lar parcel or parcels affected by said changes and to place
therein such temporary shoring and blocking as may be
reasonably required in making said changes.” (emphasis
added).
ROMANOFF EQUITIES, INC. v. US 9
that stands for that proposition. Instead, Romanoff cites
New York cases that simply stand for the proposition that
the scope of an easement is limited to the specific use for
which it is granted. Those cases do not stand for the
proposition that an easement granted for any purpose for
which the grantee wishes to use it would be unenforceable
in New York.
In fact, the closest New York case suggests the oppo-
site. That case, Missionary Society of the Salesian Con-
gregation v. Evrotas, 175 N.E. 523 (N.Y. 1931), involved
what the court called an “unusually broad” easement over
the plaintiff’s property. The easement granted not only
rights of ingress and egress, but also permitted “a free
and unobstructed use of the described land for passage of
horses and vehicles of every kind and ‘for all other lawful
purposes.’” Id. at 524. The court held that the easement,
“being in general terms, . . . must be construed to include
any reasonable use to which the land may be devoted. . . .
The only limitation is that all the uses must be lawful.”
Id. The court added that “[w]hen the terms of a grant are
doubtful, the grantee may take the language most strong-
ly in its favor.” Id.
That decision of the New York Court of Appeals clear-
ly signals that the New York courts will enforce ease-
ments by their terms and that a very broad easement,
although “unusual,” is not void simply because it extends
not only to the specific purposes named in the easement,
but to “all other lawful purposes.” See also Phillips v.
Jacobsen, 499 N.Y.S.2d 428, 429 (App. Div. 1986) (“ease-
ment granted in general terms must be construed to
include any reasonable use to which it may be devoted,
provided the use is lawful and one contemplated by the
grant”); Morgan v. Bolsan Realty Corp., 369 N.Y.S.2d 544,
546 (App. Div. 1975) (“A grantor of an easement may
convey or retain that which he desires. In other words, he
may create an extensive or a limited easement.”).
10 ROMANOFF EQUITIES, INC. v. US
In a context similar to this case, the New York Appel-
late Division recognized that when the conveyance of an
easement is between related parties, it is not surprising
for the grantor to give extensive rights to the grantee.
Morgan, 369 N.Y.S.2d at 546. The fact that the grantor
and grantee in this case were affiliated parties thus
provides an additional reason for upholding the easement
in accordance with the broad terms of the deed.
Romanoff next contends that even if the broad lan-
guage of the easement were enforceable when the ease-
ment was granted, it became more limited by virtue of the
parties’ conduct in the more than 50 years that followed
the execution of the grant. According to Romanoff, be-
cause the New York Central and its successors used the
viaduct exclusively for railroad purposes during that
period, the actual use of the property must be regarded as
having defined the scope of the easement.
The cases on which Romanoff relies in support of this
argument involve easements of ambiguous scope. In
Onthank v. The Lake Shore & Michigan Southern Rail-
road Co., 71 N.Y. 194 (1877), cited by Romanoff, the
easement was “for the purpose of laying down and keep-
ing in repair an iron pipe or conductor.” The defendant
installed a two-inch pipe; ten years later the defendant
removed that pipe and replaced it with a four-inch pipe.
Although the original grant did not specify where the
grantee could lay the pipe or how large it could be, the
court held that once the grantee “selected the place where
it would exercise its easement thus granted in general
terms, what was before indefinite and general became
fixed and certain, and the easement could not be exercised
in any other place.” The scope of the grant thus became
fixed through the actions of the parties, and the grantee
was not allowed to replace the original pipe with a larger
one, even though the original grant did not specify a
width. The same is true of the later decision in Dowd v.
Ahr, 583 N.E.2d 198 (N.Y. 1991).
ROMANOFF EQUITIES, INC. v. US 11
In those cases, the courts applied the familiar princi-
ple that the parties’ course of conduct under an ambigu-
ous agreement is evidence of the parties’ understanding of
the scope of that agreement. That principle has no appli-
cation here, as there is no ambiguity in the scope of the
easement. The fact that the property was used for rail-
road purposes for some period of time after the grant does
not suggest that the parties understood that the express
right to use the property for other purposes would be
forfeited by its longstanding use for railroad purposes.
C
Finally, Romanoff argues that the trial court’s holding
as to the scope of the easement is “contrary to the under-
standing of every party,” including the railroad, the
landowners, and New York City. Romanoff points in
particular to the fact that before converting the viaduct
into a park, New York City sought easements from the
landowners to allow the viaduct to be used as a park.
Such steps would not have been necessary, according to
Romanoff, if the City had believed that the original ease-
ment gave it the right to convert the viaduct into a park.
The simple answer to that argument is that New York
City likely sought such express easements in the hope of
avoiding litigation such as this case, and that it reasona-
bly expected that the easements would be granted be-
cause of the value the High Line Park would add to the
properties that abutted it.
III
Romanoff’s final argument is that the 1932 easement
had terminated before the viaduct was converted into a
park, and that the easement had reverted to the original
owners and their successors, including Romanoff. Be-
cause the property ceased being used for rail purposes in
the early 1980s, Romanoff contends that there was no
easement for Conrail to convey to its successors, including
the City of New York.
12 ROMANOFF EQUITIES, INC. v. US
This argument, like others made by Romanoff, de-
pends on Romanoff’s flawed assumption that the ease-
ment was limited to rail use in the first place. Because
the easement was not so limited, Conrail’s cessation of
rail operations on the viaduct did not terminate its rights
under the easement. While Conrail, or any successor,
could have terminated the easement by abandoning any
interest in the property altogether, Conrail never did so.
Instead, Conrail expressed its interest in maintaining its
rights in the property, which it ultimately passed on to
the City as its successor. There being no indication of
abandonment by Conrail or its successor, the easement
did not terminate at any time as a matter of law.
Moreover, under New York law “abandonment does
not result from nonuse alone, no matter how long”; it
requires proof that the owner of the easement intended to
abandon it and committed some overt act or failure to act
indicating that the owner does not claim or retain any
interest in the easement. Janoff v. Disick, 888 N.Y.S.2d
963, 966 (App. Div. 2009); see also Gerbig v. Zumpano,
165 N.E.2d 178, 180-81 (N.Y. 1960); DeJong v. Abphill
Assocs., 504 N.Y.S.2d 445, 447 (App. Div. 1986). As the
trial court pointed out, Romanoff offered no evidence of
such intent or acts of abandonment. Romanoff points to
statements by several courts that the rail use was aban-
doned, but not that the easement was abandoned. Roma-
noff’s claim of abandonment is therefore unsupported.
In sum, the easement granted to the New York Cen-
tral in 1932 was broad enough to encompass the use of
the viaduct for a trail and park. Nothing was done to
terminate that easement. Accordingly the trial court
properly held that Romanoff did not at any time acquire a
property interest in the viaduct easement that was taken
by the United States and for which Romanoff is entitled to
compensation.
AFFIRMED