Loading...
2009-02-19 . f GERALD A. VERGILlS. KENNETH M. STENGER ALBERT P. ROBERTS THOMAS R. DAVIS JOAN F. GARRETT" VERGILIS, STENGER, ROBERTS & DAVIS, LLP A TTORNEYS AND COUNSELORS AT LAW I 136 ROUTE 9 WAPPINGERS FALLS, NEW YORK 12590 (845) 298-2000 FAX (845) 298-2842 OF COUNSEL: KAREN MacNISH LEGAL ASSISTANTS: AMY E. DECARLO MARIA L. JONES SANDRA A. OAKLEY CLOSING COORDINATOR: SUSAN E. CAFFINE KEVIN T. McDERMOTT ANGEL I. FALCON ANTHONY M. DEFAZIO". JAMES P. HORAN". LISA M. COBB WWW.vsrp.com e-mail: info@vsrp.com · ADMITTED TO PRACTICE IN NY & FLA. ..ADMITTED TO PRACTICE IN NY & CONN. ... ADMITTED TO PRACTICE IN NY & NJ POUGHKEEPSIE OFFICE 276 MAIN MALL POUGHKEEPSIE, NY 12601 (845) 452- I 046 NEWBURGH OFFICE 299 N. PLANK ROAD, SUITE 106 NEWBURGH, NY 12550 (845) 567-3783 February 19, 2009 Gellert & Klein, P.e. 75 Washington Street Poughkeepsie, New York 12601 Attention: Stephen E. Diamond, Esq. RECEIVED FEB 2 0 2009 Re: Adams Fairacre Farms Project VSRD File No. 12949.0495 Dear Steve: TO\N'" CLERK Enclosed please find letter forwarded to Rich Peters as per last Friday's meeting. At this point I believe I have to turn the matter over to you and hopefully Senator Saland to obtain the appropriate consent from NYS DOT. I attended the Association of Towns convention in New York City on Monday and Tuesday. One of the presentations was Rights of Way Management Issues presented by the The Ayers Law Firm, PLLC, 50 West Grand Street, P.O. Box 683, Palatine Bridge, New York 13428, www.theayerslawfirm.com. I spoke to Ken Ayers after his presentation and discussed the Adams/Route 9 abandonment issue. He indicated that the leading case was the Frankfater case, 17 A.D.2d 515, 235 N Y.S.2d 476. He also indicated that these issues were discussed in the book that he published "Surveyor's Handbook - New York State Highway Law". Quite frankly, Mr. Ayers was exceptionally knowledgeable in this area of law and we might look to him for some guidance. In any event, I do not know that I can do anything more to resolve the title issues. This is certainly an area of law that is esoteric to say the least. -I , Page 2 Please advise thoughts. Very truly yours, V~:IlTENGER, ROBERTS & DA VIS, LLP ALBERT P. ROBERTS APR/so Enclosure cc: Town Board Graham Foster, Highway Superintendent Herbert Jacobson, Esq. Rights of Way Management Issues Determining the Width of Town Highways Created by Prescription And Effective Discontinuance and Abandonment of Town Highways) Presented By Kenneth L. Ayers, Esq. and Laura E. Ayers, Esq. The Ayers Law Firm, PLLC 50 West Grand Street, P.O. Box 683 Palatine Bridge, New York 13428 www.theaYerslawfirm.com Width of Town Highways Created by Prescription I. Generally The width of any given highway is generally a function of how that particular highway was established. Thus, in determining the width of a given highway the first inquiry must be: How was this particular highway established? 2. Creation of Town HilZhways by Prescription Prescription is a method of acquiring rights in the lands of another, such as an easement for highway purposes, by adverse use. In order for an easement to arise by prescription, the user must be open and notorious, continuous, uninterrupted, undisputed and adverse to the title holder of the land.2 A highway established by prescription gives the public only an easement for highway purposes, rather than a fee simple interest and, therefore, title in the roadbed remains in the owner of the adjoining land.3 I Materials presented here are excerpted from "Surveyor's Handbook-New York State Highway Law" Copyright 2008 by Kenneth L. Ayers, Esq, The Ayers Law Finn, PLLC, P.O. Box 683, 50 West Grand Street, Palatine Bridge, NY 13428 and are reproduced here with the permission of the author. Copies of the complete Surveyor's Handbook are available at www.theaverslawfmn.com 2 2 CJS Adverse Possession ~ 3 (1972). 3Heyert v. Orange and Rockland Utilities, Inc., 17 NY 2d 352 (l966). \I'je'c.tl,:~\(' ! \ ," _ _-' L '.--' \- .. 17 A.D.2d 515 17 A.D.2d 515, 235 N.Y.S.2d 476 (Cite as: 17 A.D.2d 515, 235 N.Y.S.2d 476) Page 1 (> Supreme Court, Appellate Division, Third Department, New York. Julius FRANKF A TER, Jacob Frankfater and Julius Frank, Claimants-Respondents v. The STATE of New York, Appellant. Claim No. 36184. Dec. 28, 1962. Proceeding on claim against state for appropriation of land to widen highway. The Court of Claims, Alexander Del Giorno, 1., 32 Misc.2d 130, 225 N.Y.S.2d 78, entered money judgment for claimants, and state appealed. The Supreme Court, Appellate Division, Reynolds, J., held that evidence established that state had the title to land involved on ground that old turnpike, under which state derived title to road, followed same course as did road at time of trial, and that new trial would be granted in interests of justice to allow claimants to produce further evidence bear- ing on issue of state's title where claimants had entered trial without notice that state was claim- ing title to land in question. Judgment reversed, and new trial granted. West Headnotes [1] Highways 200 ~68 200 Highways 2001 Establishment 2001(8) Establishment by Statute or Statutory Proceedings 200k68 k. Pleading and Evidence as to Existence of Highway. Most Cited Cases Evidence established that original taking, which was for turnpike, and under which state subse- quently derived title, was for a road six rods in width. [2] Turnpikes and Toll Roads 391 (::=>25 391 Turnpikes and Toll Roads 3911 Establishment, Construction, and Maintenance 391 k25 k. Acquisition of Road by Public Authorities. Most Cited Cases Evidence established that title to land abandoned by turnpike company passed to state pursuant to 1838 statute providing that, whenever turnpike corporation was dissolved or road discontin- ued, road was to become a public highway. Laws 1838, c. 262; Laws 1801, c. 36. @ 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 17 A.D.2d 515 17 A.D.2d 515, 235 N.Y.S.2d476 (Cite as: 17 A.D.2d 515, 235 N.Y.S.2d 476) Page 2 [3J Highways 200 €=>47 200 Highways 2001 Establishment 200l(B) Establishment by Statute or Statutory Proceedings 200k47 k. Width of Road. Most Cited Cases Proof of actual use will be determinative of extent of taking whenever statute prescribes maxi- mum and minimum width of highway. [4J Adverse Possession 20 C=>8(2) 20 Adverse Possession 201 Nature and Requisites 201(A) Acquisition of Rights by Prescription in General 20k5 Property Subject to Prescription 20k8 Property Dedicated to or Acquired for Public Use 20k8(2) k. Highways and Turnpikes. Most Cited Cases Establishment of prescribed 40-year period and other elements necessary for adverse possession would not cause title to land taken for road purposes to ripen in adjoining landowners, since ef- fect would be inconsistent with public right to passage over public highway. [5J Eminent Domain 148 €;:;:J300 148 Eminent Domain 148IV Remedies of Owners of Property; Inverse Condemnation 148k294 Evidence 148k300 k. Weight and Sufficiency. Most Cited Cases In proceeding on claim against state for appropriation of land to widen highway, evidence estab- lished that state had title to land involved on ground that old turnpike, under which state derived title to road, followed same course as did road at time of trial. Highway Law, S 30; Laws 1801, c. 36; Laws 1838, ch. 262. [6J States 360 ~184.40(5) 360 States 360V Claims Against State 360k184.40 Scope and Extent of Review 360kI84.40(5) k. Determination and Disposition of Cause. Most Cited Cases (Formerly 360kI84.44) New trial would be granted in interests of justice, in proceeding on claim against state for appro- priation of land to widen highway, to allow claimants to produce further evidence bearing on is- sue of state's title where claimants had entered trial without notice that state was claiming title to (Q 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 17A.D.2d515 17 A.D.2d 515, 235 N.Y.S.2d 476 (Cite as: 17 A.D.2d 515, 235 N.Y.S.2d 476) Page 3 land in question. **477 *516 Louis 1. Lefkowitz, Atty. Gen., of the State of New York (Paxton Blair, Sol. Gen., Jean M. Coon, Asst. Atty. Gen., Albany, of counsel), for appellant. Rosen & Rosen, Monticello (George H. Rosen, Monticello, of counsel), for respondents. Before *518 BERGAN, P. 1., and COON, GIBSON, REYNOLDS and TAYLOR, 11. REYNOLDS, Justice. [1][2][3][4] Involved here is a five foot wide strip in Sullivan County which the State proposes to utilize to widen Route 17B. The property in question was retained by respondents from a larger piece of property **478 they are in the process of subdividing for development. While the deed recites as the purpose of the reservation to lay water lines, in fact the water lines have been laid to the rear of the property and respondents now claim the real reason for the reservation was so that a wall could be erected between Route 17B and the development to prevent commercial use of property abutting the road. The State contends that it owns the property in question, tracing its title to the Newburgh and Cochecton Turnpike Company chartered in 1801 (L.1801, C. 36). It maintains that the center line of Route 17B is the center line of the old turnpike; that the original taking for the turnpike was six rods in width and that, therefore, respondents have no title to the property in dispute. It is our opinion that the State derived title to the turnpike as constituted un- der the 1801 charter and that the original taking was for a road six rods *517 in width. On the question of the State's acquisition of title the legislative enactment of 1838 (L.1838, C. 262) pro- viding that whenever a turnpike corporation was dissolved or the road discontinued the road was to become a public highway is dispositive. The record indicates that the Newburgh and Cochec- ton Company abandoned the property no earlier than 1865. At this point title passed to the State pursuant to the 1838 enactment. Additionally, there is no proof that the road was not continu- ously in operation under legislative aegis from its inception through 19 I 1 when the State as- sumed control of the road as a State highway (City of Cohoes v. D. & H. Canal Co., 134 N.Y. 397, 31 N.E. 887), and in fact the opposite would actually appear to be the case. As to the width of the taking involved, it is undisputed that the 1801 legislation establishing the turnpike author- ized a maximum taking of up to six rods in width and a minimum of four rods. While the general rule is that whenever a statute prescribes the maximum and minimum widths proof of actual use will be determinative of the extent of the taking (25 Am.Jur. 'Highways', ~ 36. p. 360; Anno. 76 A.L.R.2d 535, 'Highways-Width and Boundaries', ~ 11, p. 557), a review of the evidence here, especially the reports of the Commissioners of Appraisal, indicates that a six rod width was ap- propriated and paid for. It is undisputed that if the original taking was but the minimal four rods prescribed by the statute, it would include the strip in controversy. Respondents assert that since only three rods were actually utilized, the 1911 State take over contract plans indicate only a three rod road, the taking map filed pursuant to ~ 30 of the Highway Law indicated respondents owned the property involved and the State paid other people on the basis of the taking map, the State is estopped from asserting title to more than a three rod width. Even assuming that respon- dents can establish that they have suffered a legal detriment as a result of the State's action upon which estoppel would lie (compare 6 New York Jurisprudence, 'Boundaries', ~ 61 et seq. and ~ @ 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 17 A.D.2d 515 17 A.D.2d 515, 235 N.Y.S.2d 476 (Cite as: 17 A.D.2d 515, 235 N.Y.S.2d 476) Page 4 75 et seq.) we find no authority that would sanction the use of the theory of estoppel to deprive the sovereign of land conferred to it by statute.**479 Nor even if the prescribed 40 year period and the other elements necessary for adverse possession were established would title ripen here since the effect would be inconsistent with the public right to passage over a public highway (Beisham v. People, 26 Misc.2d 684,690,39 N.Y.S.2d 333). [5] The most vexing aspect of this case is whether the evidence advanced by the State is ade- quate to prove that the old turnpike laid out under the statute of 1801 follows the same course as does the present 17B. If this is established it is clear that the State must prevail (Schillawski v. State, 9 N.Y.2d 235, 213 N.Y.S.2d 68, 173 N.E.2d 793). In Schillawski the Court of Appeals dispelled all arguments that use rather than the statute determines the width and that failure to improve the entire width taken constitutes an abandonment of the unimproved portion. To estab- lish its position the State first produced a survey made in 1806 which established the center line of the turnpike along what is new respondents' land. Next the State introduced a witness who plotted that old survey to the same scale as was used in the 1911 contract plans and also to the scale in the 1955 contract plans connected to the present taking. When overlays of the 1806 sur- vey as replotted were placed on the 1911 and 1955 maps the center line of the road was almost exactly the same. The court below, despite this evidence, found that the State had not dispelled the possibility that the road might have been relocated due to inconsistencies in the testimony of the State's witnesses. While admittedly testimony by the State's own witnesses indicating that using the description in certain deeds the center line would be other than as presently constituted is some evidence to substantiate respondents' contention of the possibility of a center line devia- tion, we do not find these discrepancies sufficient to warrant a disregard of the vivid evidence portrayed by the overlays especially since the preparation of the overlays was not dependent on these descriptions. Respondents' argument that the State did not prove that the strip in question abutted the old turnpike must fall on the same evidence, for if the present Route 17B abuts the strip and 17B follows the route of the old turnpike then the old turnpike must also have abutted the same land. On the basis of the present record we find that the State has established title to the property here involved. [6] Since claimants, however, entered this trial without notice that the State claimed title to the strip in question, in the interests of justice a new trial should be granted to allow claimants to produce any further evidence bearing on the issue. The judgment should be reversed and a new trial granted, without costs. Judgment reversed, on the law and the facts, and a new trial granted, without costs. BERGAN, P. 1., and COON, GIBSON and TAYLOR, 11., concur. N.Y.A.D. 1962 Frankfater v. State 17 A.D.2d 515, 235 N.Y.S.2d 476 @ 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 17 A.D.2d 515 17 A.D.2d 515, 235 N.Y.S.2d 476 (Cite as: 17 A.D.2d 515, 235 N.Y.S.2d 476) END OF DOCUMENT (Q 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. Page 5