Earlier today, we asked the Federal Circuit for its permission to file this amici brief urging the court to rehear its recent panel decision in Romanoff Equities, Inc. v. United States, No. 15-5034 (Fed. Cir. Mar. 10, 2016).
This is a rails-to-trails takings case in which the panel concluded that the words in the original easement grant "for railroad purposes and for such other purposes as the Railroad Company ... may ... desire to make" mean that the easement was a "general" easement which allowed the grantee to not only make railroad use of the easement, but literally any use it desired. Thus, when the railroad abandoned the line and the City of New York turned it into the Highline public park, the reversionary property owners were not entitled to compensation.
Our brief argues that there's no such animal as a "general" easement that allows the grantee to do anything it likes with the easement. The nature of easements are limited, and its hornbook law that an easement is supposed to be for a special purpose, not a general one. From the brief's Summary:
Words have meaning. Especially words in a document conveying an interest in real property. These words must be viewed in light of the intent of the parties as expressed by the terms of the instrument, state law, and the “special need for certainty and predictability where land titles are concerned.” Certainty and predictability in property is not a rule that exists for its own sake, sui generis, but one which forms the foundation of every other civil right. The panel, however, violated these principles when instead of certifying the question to the New York courts, it discovered in the Romanoff conveyance something never before seen in New York law (or the law of any other jurisdiction): a “general easement,” which can be used “for any purpose for which the grantee wishes.” In doing so, it permitted the Romanoff family’s property which its predecessors conveyed for railroad purposes, to be impressed into public service as a recreational space without compensation.The concept of a general easement has not been recognized by any New York court (or the courts of any other jurisdiction), and we argue that the the panel made its best guess, when it should have, at minimum, certified the question to New York's state courts:
It is highly doubtful that a New York court—were it given the opportunity to consider the question—would conclude than an interest labeled by the grantor as an “easement” (usually defined as use for a “special purpose”), is a “general easement” that contemplated use for any purpose, especially uses as admittedly unrelated to the easement’s main railroad purpose as tai chi, “gender bending performances from the club and theater stage,” garden tours, and “stargazing.” Here, we have a very specific easement which was for railroad purposes to eliminate at-grade crossings. But even if the easement was granted in general terms, the rule of construction is to construe the extent of its use only as is “necessary and convenient for the purpose for which it is created.” An easement to do anything the grantee wants for as long as it wants isn’t really an “easement,” it is a grant of fee simple by another name. The panel’s ruling has effectively converted the grant of an easement for railroad purposes into a fee simple estate, contrary to both the terms of the instrument and New York law.