[00:00:01] Speaker 02:
Good morning, everyone.

[00:00:04] Speaker 02:
The first argued case this morning, Assembly 15-5034, Romanoff Equities Against the United States.

[00:00:11] Speaker 02:
Mr. Hearn.

[00:00:15] Speaker 00:
Thank you, Judge Newman, and may it please the Court.

[00:00:18] Speaker 00:
This appeal asks this Court whether the Court of Federal Claims is correct to hold that a 1932 easement

[00:00:27] Speaker 00:
that was granted for the purpose of creating and operating an elevated railroad viaduct was in fact, which was used for 50 years for only that purpose.

[00:00:39] Speaker 02:
Let me ask you exactly what's troubling here.

[00:00:42] Speaker 02:
There's no question that that was why the easement must have been an issue.

[00:00:49] Speaker 02:
But the contract that was entered into is extraordinarily broad and unlimited.

[00:00:57] Speaker 02:
Isn't this more a matter of contract interpretation than easement philosophy?

[00:01:04] Speaker 00:
Well, I think two points in answer to that, Judge Newman.

[00:01:07] Speaker 00:
The first is what New York's highest court has said is a timeless first principle is that the intent of the grand tours is what defines the scope of the easement.

[00:01:18] Speaker 00:
In this case, as even Judge Firestone found,

[00:01:21] Speaker 00:
The parties never foresaw the use of this property for anything other than a railroad.

[00:01:26] Speaker 00:
They didn't foresee it particularly.

[00:01:28] Speaker 00:
for taco trucks and dancing and public recreation.

[00:01:31] Speaker 03:
That was not something contemplated.

[00:01:33] Speaker 03:
But the New York Court of Appeals has expressed its view and opinion, including Chief Judge Cardozo.

[00:01:46] Speaker 03:
What can't be better than that?

[00:01:48] Speaker 03:
And they had a precedent in a similar case going with a broader interpretation based on the language.

[00:01:57] Speaker 03:
which is similar to Allen's, right?

[00:02:00] Speaker 00:
Well, I don't think it's similar.

[00:02:01] Speaker 00:
And I think the case you're referring to is Missionary Society, an opinion by Judge O'Brien joined by Justice Cardozo.

[00:02:07] Speaker 00:
Justice Pound didn't participate in that, but certainly some luminous jurors involved in that.

[00:02:15] Speaker 00:
But that case, if you read the case as a short opinion, that involved an easement to access Long Island Sound.

[00:02:21] Speaker 00:
And the question there was whether an easement granted for

[00:02:25] Speaker 00:
Horses and vehicles could also be used by pedestrians and could they build a sidewalk.

[00:02:30] Speaker 00:
And in that case, the court specifically notes that the intent of the grand tours, they're talking about this was an easement, this were uses that were within the scope of the intent of the grand tours.

[00:02:41] Speaker 04:
And the source of the determination of the intent of the grand tours, as I understand your law and law generally is,

[00:02:49] Speaker 04:
starts with language, right?

[00:02:51] Speaker 04:
And if there's something about the context that strongly suggests that the language should not be read as broadly as it would appear on the face of it, that's something worth considering.

[00:03:04] Speaker 04:
But you start with the language, and frequently, I would suppose, stop with the language.

[00:03:09] Speaker 04:
So that brings us back to Judge Newman's question.

[00:03:12] Speaker 04:
Isn't this very broad language?

[00:03:14] Speaker 04:
indicative of an intention to grant in accordance with the ordinary understanding of that language.

[00:03:19] Speaker 00:
And certainly, on that point, we prevail and explain why.

[00:03:23] Speaker 00:
This language, it says, such other purposes as a railroad may desire.

[00:03:27] Speaker 00:
That's the language Judge Firestone fixed upon to say this is such argument.

[00:03:31] Speaker 00:
That's such argument.

[00:03:33] Speaker 04:
But before we get to that, and I don't want to cut you off from making that argument, because I know it's a central issue in your brief.

[00:03:41] Speaker 04:
But before you get there, I'd like to make sure I understand what your position is with respect to whether this kind of conveyance could, even if quite clearly intended, to grant the right for any purpose whatsoever, would be unenforceable in New York law.

[00:04:05] Speaker 04:
And suppose that instead of saying such purposes as that the language had been unambiguously

[00:04:12] Speaker 04:
explicit and said for any purpose whatsoever, whether railroad purpose or otherwise, that the successors and assigns, whoever they may be, might wish.

[00:04:24] Speaker 04:
Is it your position that that clause would be unenforceable in New York law?

[00:04:30] Speaker 00:
Well, yes, Judge Bryson, because it's not an easement, right?

[00:04:35] Speaker 04:
Isn't that another way of saying that it might not be an easement?

[00:04:41] Speaker 04:
whatever kind of instrument it is, whatever's at the top, you look at the text of the instrument and if it makes that conveyance, and that conveyance is the intent of the parties, wouldn't that conveyance be respected, whether you call it an easement or a fee or a fee with a reverter or whatever?

[00:04:59] Speaker 04:
Wouldn't that be respected at New York Law?

[00:05:02] Speaker 04:
Or put another way, do you have any case that says it wouldn't?

[00:05:05] Speaker 00:
Well, I think there's several cases, and we cite them in the brief.

[00:05:08] Speaker 00:
I think the young case is one that's particularly leading, that New York's highest court has said, we must look at the language of this document to determine the intent of the parties, the intent governs.

[00:05:18] Speaker 00:
Well, I know.

[00:05:18] Speaker 04:
We've agreed on that.

[00:05:20] Speaker 04:
But I'm looking for something, some support, which I didn't really find in your brief, for the proposition that no matter how clear, even assuming away the such problem, no matter how clear the language might be,

[00:05:34] Speaker 04:
It's unenforceable.

[00:05:36] Speaker 00:
Well, again, that begs the conclusion that this deed in the language and the deed would have actually said you can use this land for anything.

[00:05:44] Speaker 00:
And it doesn't.

[00:05:44] Speaker 04:
Well, it's a starting point for trying to decide whether the inquiry into what the language actually means is worth engaging in.

[00:05:53] Speaker 04:
I mean, if you can't have anything, any kind of conveyance like this, no matter how clear the language is, we're done.

[00:06:00] Speaker 00:
Well, I would agree exactly with that premise, that no court in New York, and particularly New York's highest court, has never found ever that an easement granted the right to use property for any purpose, essentially converting what is an easement into a fee of state.

[00:06:17] Speaker 00:
No court has ever found that to be the case.

[00:06:20] Speaker 04:
But no court has ever held that it isn't enforceable, as I got it.

[00:06:25] Speaker 00:
Well, the courts have said repeatedly in New York that we're going to look at the language and the intent of the parties.

[00:06:32] Speaker 00:
That's our, quote, timeless first principle.

[00:06:35] Speaker 04:
Right, but you're going back to the language and intent and not pointing me to a case that says you can't have this kind of agreement even if the language is clear.

[00:06:46] Speaker 00:
Well, I would look at the Lewis versus Young decision, which was in 1998.

[00:06:50] Speaker 00:
I would look at also on Tonk versus Lakeshore Railroad.

[00:06:54] Speaker 00:
which was an 1877 decision, and they're cited in a brief, both by the New York Court of Appeals.

[00:07:02] Speaker 00:
Both of those say when we're confronted with a situation such as this, we have this document, which in this case, it's not just six words.

[00:07:09] Speaker 00:
We're dealing with a 10-page, 3,000-word, single-spaced, typewritten document that the parties took great pains to specifically identify all their rights and responsibilities.

[00:07:21] Speaker 00:
And to conclude that that text somehow said,

[00:07:24] Speaker 00:
Oh, forget everything in this document.

[00:07:26] Speaker 00:
We're giving you the right to use this property for anything you want to use.

[00:07:30] Speaker 00:
Even things that, as Judge Firestone found, they never contemplated is contrary to, as again, the Court of Appeals in New York has said, timeless first principle that we're going to look at.

[00:07:40] Speaker 00:
The party's intent will look at the language and the text of the document.

[00:07:44] Speaker 00:
And so that gets us to that.

[00:07:45] Speaker 02:
Well, the problem with that argument is if you look at the language and the text of the document, it's extraordinarily strong.

[00:07:52] Speaker 02:
We see so many of these documents because of the Rails to Trails Act.

[00:07:57] Speaker 02:
And I don't recall any that was written this broadly.

[00:08:01] Speaker 02:
They generally say railroad purposes or related purposes in the document, related purposes.

[00:08:09] Speaker 02:
Then comes the act of Congress of the conversion to recreational use, in part in order to preserve the space in case we ever go back to railroads.

[00:08:20] Speaker 02:
But I've never seen one written this broadly.

[00:08:23] Speaker 02:
And one wonders, back in history, obviously none of us was there, what was in the minds of the negotiators to write something.

[00:08:33] Speaker 02:
We assume competent lawyers on both sides to write an unlimited grant.

[00:08:39] Speaker 02:
It's still called an easement, which is an argument that gives one pause to think about, as Judge Bryson has mentioned.

[00:08:50] Speaker 02:
that this language is unique?

[00:08:54] Speaker 00:
Well, Judge Newman, I would take issue with that.

[00:08:56] Speaker 00:
I don't find the language unique.

[00:08:58] Speaker 00:
And I would refer to our opening brief, particularly on pages six through eight, where we quote the relevant provisions of this.

[00:09:04] Speaker 00:
Repeatedly throughout this document, they define this as being for railroad purposes and for the successor railroad, which in the Supreme Court's East Alabama decision has said a successor railroad is a successor railroad with the franchise.

[00:09:19] Speaker 00:
So that would not include New York City using this property for something having no relation whatsoever to the operation of a railroad.

[00:09:28] Speaker 00:
Why would they have written 10 pages of single-space typewritten specification, all of which dealt very specifically and precisely with operating a railroad, if their intent was to say, we'll let you use it for anything?

[00:09:41] Speaker 00:
It makes no sense to say that you can pull these three or four words out of the context

[00:09:46] Speaker 00:
and conclude the entire document then somehow granted rights that even as Judge Firestone said, no one contemplated at the time.

[00:09:53] Speaker 00:
And I see my time has expired, and I would reserve the balance for rebuttal.

[00:09:59] Speaker 02:
Yes, let's hear from you.

[00:10:01] Speaker 02:
Will the other side move before we rebuttal?

[00:10:04] Speaker 02:
OK, the speaker.

[00:10:18] Speaker 01:
Good morning.

[00:10:19] Speaker 01:
I am Emily Meeker and with my colleague, Chris Tardiff, I represent the United States.

[00:10:24] Speaker 01:
May it please the court?

[00:10:26] Speaker 01:
We all agree that this case involves the interpretation of easement language under New York law.

[00:10:32] Speaker 01:
The Court of Federal Claims correctly concluded that this broad easement allows use for rail banking and interim trail use and is not limited only to rail.

[00:10:43] Speaker 02:
What's your answer to the position?

[00:10:46] Speaker 02:
that yes, we've got this broad statement.

[00:10:49] Speaker 02:
We also have 10 pages on specificity of railroad use.

[00:10:53] Speaker 01:
We do have that, Your Honor, but the language that we are looking at and are focused on is the language that talks about how the New York Central Railroad can use the Eastman area.

[00:11:05] Speaker 01:
And that's the granting language, and that's what the court needs.

[00:11:08] Speaker 02:
Well, let's talk about the other language.

[00:11:10] Speaker 01:
And the other language talks about

[00:11:12] Speaker 01:
taxes, how the parties will divide the taxes, talks about certain other ways, how they'll build, how they'll be venting.

[00:11:20] Speaker 01:
There is certainly other language, but when we look to how the Eastman area should be used, this is clear and unambiguous language that it can be used for any such purposes that the railroad company, its successors and assigns desire.

[00:11:36] Speaker 02:
Maybe it was just loose language that just got tucked into one sentence.

[00:11:41] Speaker 01:
Well, Your Honor, I don't think that's right.

[00:11:43] Speaker 01:
And there are a couple of reasons to believe that.

[00:11:48] Speaker 01:
First, these are two highly sophisticated corporations.

[00:11:51] Speaker 01:
We have the New York Central Railroad, and we have the New York Realty and Terminal Company.

[00:11:57] Speaker 01:
The Realty and Terminal Company was actually a division of the Central Railroad.

[00:12:01] Speaker 01:
These are sophisticated corporations.

[00:12:04] Speaker 01:
They certainly anticipated that this property would be used for railroad purposes.

[00:12:08] Speaker 01:
We see that in the language.

[00:12:10] Speaker 01:
But they also anticipated that the New York Central Railroad might want to use the language for other purposes.

[00:12:15] Speaker 01:
And we know that because it's also in the easement language.

[00:12:19] Speaker 01:
And what New York law says is that once the easement language is clear and unambiguous, the inquiry is finished.

[00:12:27] Speaker 04:
So you disagree with your proposal on the question of whether New York law would require

[00:12:34] Speaker 04:
the language that's unambiguously clear that says you can use it for any purpose, that New York law would not enforce such an agreement.

[00:12:47] Speaker 01:
I disagree with my colleague, Mr. Hearn.

[00:12:50] Speaker 01:
I would urge the court to look to the Missionary Society case.

[00:12:53] Speaker 04:
We have.

[00:12:56] Speaker 04:
That doesn't quite get you there, it seems to me.

[00:13:00] Speaker 04:
Well, in that case, the court-

[00:13:02] Speaker 01:
Well, in that case, the court looked at the language.

[00:13:08] Speaker 01:
It allowed for horses, vehicles, and all other lawful purposes.

[00:13:13] Speaker 01:
And what the court said is this is unusually broad, it's general in terms, and the only limitation on the use of this property

[00:13:21] Speaker 01:
is that it be used for lawful purposes.

[00:13:23] Speaker 04:
But they went on, if I recall the opinion, to say that it's really related to access.

[00:13:28] Speaker 04:
The water, I think it's a water portager of some such use, right?

[00:13:33] Speaker 01:
They did do that, Your Honor, assuming that it was only limited to a right of way.

[00:13:38] Speaker 01:
These uses would also be included.

[00:13:40] Speaker 01:
But I am not aware of any New York case that says this is too broad.

[00:13:47] Speaker 01:
Mr. Hearn says that this is a fee, but it's not, in fact, a fee.

[00:13:50] Speaker 01:
It's an easement because the realty company reserves certain rights to itself.

[00:13:55] Speaker 04:
The rights being the right for, in the case of abandonment, to have a revertor of the interest, I take it, and the rights against despoiling the property and so forth.

[00:14:09] Speaker 01:
They also reserve the right to build columns.

[00:14:12] Speaker 01:
They had the right to build above this easement area.

[00:14:14] Speaker 01:
This is a rectangular prism.

[00:14:16] Speaker 01:
And so they had the right to build columns above that didn't interfere with the uses of the easement holder, but they had that right.

[00:14:25] Speaker 01:
So they did reserve certain rights to themselves.

[00:14:28] Speaker 01:
And a fee, as the court is aware, the grantor gives all of his rights.

[00:14:33] Speaker 04:
Let me ask you a question that doesn't pertain to the precise issue we've been discussing, but it was in the record, and I'm just curious.

[00:14:42] Speaker 04:
The issue of the covenants not to sue was not decided by Judge Firestone and isn't an issue here.

[00:14:51] Speaker 04:
What happened to that issue?

[00:14:53] Speaker 04:
Because he would have thought that would have been a threshold issue, which if resolved against the appellant, would be the end of the game.

[00:15:03] Speaker 01:
So I'm curious why we're on the merits instead of deciding that issue.

[00:15:07] Speaker 01:
There were six plaintiffs that did sign a covenant not to sue.

[00:15:11] Speaker 01:
That decision was issued by Judge Firestone.

[00:15:13] Speaker 01:
It was appealed, and this court summarily affirmed.

[00:15:17] Speaker 01:
This particular appellant was not involved in that.

[00:15:20] Speaker 01:
And the reason it wasn't is that on the day the C-2 was issued, the appellant created a new corporation

[00:15:27] Speaker 01:
and transferred the property a couple months later to a new entity.

[00:15:32] Speaker 01:
And then New York got this new entity to sign the covenant not to sue.

[00:15:36] Speaker 01:
But the taking, alleged taking, occurs on the date of the C2.

[00:15:40] Speaker 01:
So although the entity that was wholly owned by this other entity and by the same family signed the covenant not to sue, this particular entity did not.

[00:15:52] Speaker 01:
I'd like to turn back to the statement

[00:15:55] Speaker 01:
plain language, my colleague argues that for such other purposes should be interpreted as for such other railroad purposes.

[00:16:08] Speaker 01:
Such that the granting clause would say for railroad purposes and for such other railroad purposes as the railroad company its successors and assigns desire.

[00:16:17] Speaker 01:
Of course, that reading would make the second clause completely redundant and would strip it of any meaning.

[00:16:22] Speaker 02:
Maybe they were just sloppy or hasty.

[00:16:26] Speaker 02:
Or what else could there be?

[00:16:29] Speaker 01:
Your Honor, I think the answer is they weren't sloppy.

[00:16:32] Speaker 01:
They weren't hasty.

[00:16:33] Speaker 01:
They carefully came to an agreement.

[00:16:35] Speaker 01:
They negotiated it.

[00:16:36] Speaker 01:
And they used this language that the grantee negotiated for this right and paid for it.

[00:16:44] Speaker 01:
And what the New York courts also say, which I think is not necessary here, but if the language is ambiguous or if it's not clear,

[00:16:52] Speaker 01:
New York courts construe easements most strongly against the grantor.

[00:16:57] Speaker 01:
And that's also in the Missionary Society case from the New York Court of Appeals.

[00:17:02] Speaker 01:
And in this case, that would require a broad reading of the easement, not narrow, as appellants suggest.

[00:17:11] Speaker 01:
We talked a little bit about the relationship between the parties.

[00:17:15] Speaker 01:
And I wanted to also talk about the East Alabama case that my colleague Mr. Hearn mentioned.

[00:17:22] Speaker 01:
where the Supreme Court was applying Alabama law.

[00:17:26] Speaker 01:
And Mr. Hearn has not cited a case where New York courts use Alabama law to interpret their decision or a New York court case that says anything similar.

[00:17:36] Speaker 01:
What New York courts do, as we know, is they look to the language of the easement.

[00:17:41] Speaker 01:
And if we turn to page 826 and 27 of this particular easement, it defines who the successors and assigns are.

[00:17:51] Speaker 01:
And it says, whenever the term railroad company shall be used herein, the same shall be construed to mean the railroad company, its successors and assigns, being the successor and title to the railroad company, to the rights and easements herein granted to the railroad company and the respective land.

[00:18:07] Speaker 01:
So the successor and assigns are the entity that takes title to the land.

[00:18:12] Speaker 01:
This clause does not refer to the operation of a railroad or someone having a franchise.

[00:18:21] Speaker 02:
And again- I think that seems to help them.

[00:18:23] Speaker 02:
How confident are you that New York law would be clear and explicit and unambiguous in interpreting this property right?

[00:18:35] Speaker 01:
Very confident.

[00:18:36] Speaker 01:
I think the New York

[00:18:37] Speaker 01:
Court of Appeals addressed a case that's very similar in Missionary Society 85 years ago, and the other courts in New York, the Appellate Division, have applied that law to other cases.

[00:18:50] Speaker 02:
I don't think any of those cases, I have to say I haven't studied them carefully, had as explicit a grant as here.

[00:19:01] Speaker 01:
That's true, except I guess the one exception might be the Phillips v. Jacobson case.

[00:19:08] Speaker 01:
And in that case, we don't know much about the grant, except that the court said it was an easement and it wasn't limited by its terms for purposes.

[00:19:16] Speaker 01:
And the court cited the Missionary Society case for that it could be used for any purpose.

[00:19:25] Speaker 01:
So I believe that New York law is clear on this point.

[00:19:28] Speaker 02:
And I also think that the purposes were not as broadly unrelated as here.

[00:19:38] Speaker 01:
Your Honor, I mean, what my colleague says is that it wasn't contemplated.

[00:19:44] Speaker 01:
Well, we know what the parties contemplated.

[00:19:46] Speaker 01:
They contemplated that the railroad might want to use it for other purposes.

[00:19:49] Speaker 01:
That's the language.

[00:19:51] Speaker 01:
No New York case says that the parties have to sit down and sort of imagine every specific use.

[00:19:57] Speaker 01:
No, the parties can contract.

[00:19:58] Speaker 01:
They can say, you know, we don't know how this might be used.

[00:20:02] Speaker 01:
We don't know what's going to happen in the future.

[00:20:03] Speaker 01:
But we can contract around that unknown.

[00:20:06] Speaker 01:
And that's what they did here.

[00:20:08] Speaker 01:
The other part of this easement that I'd like to direct the court to is the Habitum Clause.

[00:20:15] Speaker 01:
Frequently in our cases, we see, and Judge Newman, you mentioned before that often in railroad cases, they refer to railroad purposes.

[00:20:24] Speaker 01:
Frequently, we see habitum clauses that state that the easement will terminate when railroad purposes end.

[00:20:33] Speaker 01:
This one, which is on JA Joint Appendix 827, does not.

[00:20:38] Speaker 01:
It says, quote, to have and to hold the perpetual rights

[00:20:41] Speaker 01:
in easements herein granted by the Realty Company and the parcels of land above described, and to the railroad company, its successors, and the signs, forever.

[00:20:51] Speaker 01:
It does not limit this or say that the easement will end when it is no longer used for railroad purposes.

[00:20:58] Speaker 01:
And this differentiates this easement from other easements we see.

[00:21:11] Speaker 01:
I'd also like to quickly address the abandonment issue.

[00:21:16] Speaker 01:
Under New York law, to prove abandonment, appellant must show by clear and convincing evidence that there was an intention to abandon and some overt act or failure to act, which carries the implication that the owner neither claims nor retains any interest in the easement.

[00:21:32] Speaker 01:
Appellant does not meet that heavy burden here.

[00:21:34] Speaker 01:
Appellant's arguments regarding abandonment rely on their argument that easement was limited to railroad purposes.

[00:21:41] Speaker 01:
It was not.

[00:21:42] Speaker 01:
That's shown by the granting clause, which we've discussed, and the Habitim clause, which is found on page 827.

[00:21:47] Speaker 01:
And we also discussed that as well.

[00:21:51] Speaker 01:
Moreover, the evidence in the record shows that the railroad has been actively involved with the High Line and has never acted in a way that suggested it neither claimed nor retained any interest in the easement.

[00:22:03] Speaker 01:
It contested the adverse abandonment proceeding and was actively involved regarding the negotiations in the High Line.

[00:22:10] Speaker 01:
in the late 1990s and early 2000s.

[00:22:13] Speaker 01:
So as the Court of Federal Claims found, these actions are of an entity that was actively claiming its property, not one that neither claimed nor retained any interest in the property.

[00:22:23] Speaker 01:
An appellant lacks evidence to show otherwise.

[00:22:27] Speaker 01:
Unless the Court has any further questions, I will sit down.

[00:22:31] Speaker 01:
We ask that you affirm the decision of the trial court

[00:22:34] Speaker 01:
And in the event that the court remands, we would ask that you remand so that the trial court can consider our alternative liability argument.

[00:22:40] Speaker 02:
Any questions?

[00:22:41] Speaker 02:
Any more questions?

[00:22:42] Speaker 02:
OK.

[00:22:43] Speaker 02:
Good.

[00:22:45] Speaker 02:
Thank you.

[00:22:46] Speaker 02:
Thank you.

[00:22:50] Speaker 00:
Thank you, Your Honor.

[00:22:51] Speaker 00:
And Judge Bryson, you're absolutely correct when you say that Missionary Society doesn't get the government where it wants to go, doesn't support the CFC's conclusion in this case.

[00:23:02] Speaker 00:
Missionary Society said,

[00:23:03] Speaker 00:
And easement granted for vehicular use, for horses, for carriages, could also be used for pedestrians.

[00:23:09] Speaker 00:
You're exactly right to say, which is how the court analyzed Missionary Society, saying that's OK.

[00:23:14] Speaker 00:
You can also build a sidewalk for the pedestrians and lay a water pipe.

[00:23:18] Speaker 00:
That's a far cry from the situation we're confronted with here, which is a situation where unquestionably what even Judge Firestone found was what was intended to be an elevated railroad viaduct easement.

[00:23:30] Speaker 00:
somehow now is used by a non-railroad for taco trucks, dancing, stargazing, public recreation.

[00:23:38] Speaker 00:
Things have nothing to do with the railroad.

[00:23:41] Speaker 00:
It is impossible to read that document, the 10-page typewritten document, and come away with the conclusion that these people intended to grant New York City, a non-railroad, the right to use that property in the manner it's now being used.

[00:23:55] Speaker 00:
That is the simple question of New York law.

[00:23:57] Speaker 00:
No case that we've ever found in New York has embraced a situation like this, granting such a interpretation of an easement to allow uses that were not contemplated by the parties.

[00:24:11] Speaker 00:
Again, I mentioned it earlier, the timeless first principle the New York Court of Appeals continues to use to guide its interpretation of easements.

[00:24:19] Speaker 00:
is the party's intention.

[00:24:21] Speaker 00:
Now, when we look at the language, as you noted, Judge Newman, and I quote the language right now, the operative language upon which Judge Firestone premised her conclusion, were the words, for railroad purposes and for such other purposes as the railroad company its successors and assigns may for time to time desire to make use.

[00:24:42] Speaker 03:
Other meaning other than railroad.

[00:24:45] Speaker 00:
I would say, for such other purposes, the word such qualifies other purposes.

[00:24:51] Speaker 00:
It refers back to what appears before that.

[00:24:54] Speaker 00:
We cite Justice Robert's decision in King V. Burwell, where he noted the word such is not any.

[00:25:01] Speaker 00:
The word such is qualified by the preceding phrase.

[00:25:05] Speaker 04:
It depends on how the word such is used, though.

[00:25:08] Speaker 04:
I mean, if one says an expression such as,

[00:25:14] Speaker 04:
I am going to invite my fellow judges and such other persons as I may choose to dinner.

[00:25:24] Speaker 04:
The such there does not mean, and they have to be among my fellow judges.

[00:25:29] Speaker 04:
It means exactly the opposite.

[00:25:30] Speaker 04:
It means such other different purposes.

[00:25:33] Speaker 04:
And that's parallel to this language, it seems to me.

[00:25:37] Speaker 04:
I find your such argument doesn't have much traction.

[00:25:40] Speaker 00:
Well, and I would say that when you look at that, and here's maybe I can add some traction to the argument, because what I'm looking at is within that whole paragraph, and particularly within the whole document, you find, again, painstaking discussion of the specifics of the railroad's uses.

[00:25:56] Speaker 00:
So you find reference to cables, to tracks, to there's other railroad purposes that are necessary to the operation of a railroad.

[00:26:05] Speaker 00:
That's clearly what I believe they had contemplated when they said such other purposes.

[00:26:09] Speaker 00:
So for example, employee lockers or hand cars or some signals or electric signals or telegraph lines that are related to the operation of the railroad.

[00:26:18] Speaker 00:
Those would be other railroad purposes.

[00:26:20] Speaker 00:
When you see this document, it's impossible, I think, to conclude that when they wrote that, that they contemplated, and even Judge Firestone didn't find, oh, we can mean a non-railroad using it for public recreation.

[00:26:33] Speaker 04:
Well, you keep saying that, Judge.

[00:26:35] Speaker 04:
Firestone so found this.

[00:26:38] Speaker 04:
I assume you're referring to the statement where she says that it doesn't matter that they didn't specifically contemplate the use for a trail or a park as long as the language is clear enough that it's clear that they contemplated that they could be any other purpose.

[00:26:57] Speaker 04:
Is it basically what you're saying?

[00:26:59] Speaker 04:
I don't see that that's

[00:27:00] Speaker 00:
Well, the statement I was actually referring to is at Joint Appendix 12, and I'll quote,

[00:27:10] Speaker 00:
or a realty company in New York Central Railroad could not foresee use of the corridor for a public trailer park, meaning that it was not within their contemplation at the time this document, this easement was established.

[00:27:23] Speaker 04:
Not for those kinds of specific purposes, but that's quite different from saying they couldn't contemplate that it could possibly be used for any other non-railway, any non-railway purpose, right?

[00:27:33] Speaker 00:
And I think, Judge Bryson, that's where it blends into this concept of the distinction between an easement and a fee estate.

[00:27:39] Speaker 00:
If you say the parties signed a document called an easement, which everybody admits it is, but that they contemplated this easement granting the right to do anything they wanted with the property, you've suddenly transmogrified an easement into a fee estate.

[00:27:52] Speaker 00:
Because what would be the limits to this?

[00:27:54] Speaker 00:
The only limit that Judge Firestone suggested was the physical dimensions of the property.

[00:27:59] Speaker 00:
Well, that's not really a limit on a use.

[00:28:02] Speaker 00:
An easement is a specific, but by definition, a specific use of the property for a specific purpose.

[00:28:08] Speaker 00:
And it can't encompass all purposes.

[00:28:11] Speaker 00:
Thank you.

[00:28:12] Speaker 02:
Okay.

[00:28:12] Speaker 02:
Thank you.

[00:28:13] Speaker 02:
Thank you both.

[00:28:14] Speaker 02:
The case is taken into submission.