State of New York
Supreme Court : County of Livingston

To acquire for public use, benefit or
purpose, to wit, the construction of
a new rail service line, certain interests
in real properties located in the
Town of Mount Morris and
Village of Mount Morris,

Index No. 1003-1998

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

Myron O. Brady and his family farm more than 2,500 acres of the fertile Genesee Valley in the town and village of Mount Morris, New York. Some 280 acres of the property, owned by Mr. Brady, is the subject matter of this action. Other land 1is titled to Brady Farms, Inc., which is owned by Mr. Brady and other family members, and some by other entities with which Mr. Brady has regularly entered into leases.

The Genesee and Wyoming Railroad, a regional carrier, operates a rail line that adjoins the western boundary of Mr. Brady's property. In the middle of the last decade the railroad decided to build a spur connecting this line with a salt mine to be opened in the area to the east. The spur as proposed and as built went over the Brady property as well as the land he leased, thus cutting off access to the northern section of his land. This section constitutes the bulk of the agriculturally useful land directly owned by Mr. Brady, and it was necessary for him to have access to it with his farm machinery. The condemnor recognized this obligation from the outset and, in its petition, agreed to provide Mr. Brady with a permanent 50-foot-wide easement across the tracks to the northern part of the property for ingress and egress. This Court ordered that Mr. Brady be given such access in its condemnation order in 1999. Such an easement would likely be implied in law even if there had been no express grant (See, Railroad Law § 52, on crossing points for farm animals).

The recorded easement contained the following language:

Grantee further agrees to the condition and restriction that each year during the period May 1 to October 31, except when a train is crossing, one of the private grade crossings shall be left clear at all times for the use of the Grantor, its successors and assigns.

This is the language that has given rise to the present controversy. Mr. Brady, who is the only respondent still involved in litigation, insists that this provision constitutes a taking of his right to access for the period November 1 to April 30. He essentially applies the expressio unius est exclusio alterius rule from statutory interpretation: because it grants Mr. Brady continuous access during one period, he argues, the clause automatically prohibits his access at other times, or at the very least gives the railroad permission to block it.

With the exception of a claim that his drainage has been disrupted, this one argument is the whole of Mr. Brady's case, and it is the basis for his appraiser's determination that the value of the condemnation is $201,025. He presented no facts in its support. During the trial he admitted that his access to the northern land has never been blocked, whether during the May 1--October 31 period or any other time. He continues to farm this land with his machinery and market its produce.

The petitioner argues in response that the scope of the taking was determined by the court order, and that the language cited above was not a limitation on the grant but mere surplusage. In support of their claim that was there no intention of restricting Mr. Brady's access the respondents point to the fact that the easement has since been amended to remove this language. Mr. Brady, however, argues that this amendment is an impermissible attempt to undo the taking, and he maintains that the damages he suffered must be measured at the time of the taking.

But what was taken? It appears that Mr. Brady or his attorney have mistaken a very tenuous interpretation of one clause in the easement for the easement itself. The maxim implied by Mr. Brady's argument is a useful one in the interpretation of statutes, though it is not to be applied to defeat the purpose of the legislation (McKinney's Statutes, § 240). But here we are dealing with a contract, not a law, and expressio unius est exclusio alterius is not a principle of contract interpretation. The easement is silent on the period November 1 to April 30, but the language as a whole, the judicial mandate, real property and railroad law and the practice of the parties all demonstrate that the petitioner never intended to deprive Mr. Brady of access and never did so in fact.

Nothing during the trial dispelled the air of unreality that hung around Mr. Brady's claims. He showed no damages whatsoever as a result of the theoretical right to cut off access that he claims the railroad took. Late in the trial he produced a photograph of a line of boxcars which he testified were stopped on his land, a fact which cannot be determined from a still photograph. He then admitted that the train he photographed did not block the crossings (T. 233). This testimony, then, was irrelevant to this proceeding.

Assuming for argument's sake that the respondent's argument were valid, this court would have difficulty understanding why it should award hundreds of thousands of dollars for a diminution of rights that existed on paper only, had no practical effect, and has been eliminated by a subsequent instrument. If there had been any effect to the so-called limitation language--an argument which this court does not accept--the clause would have been in violation of the 1999 condemnation order. Mr. Brady's proper remedy would have been to apply to vacate the deed until it could be redrafted to effectuate the rights the court had granted therein. Seeing the position the petitioner has taken throughout, this court has no doubt that this would have been done speedily and without argument; it was, after all, the result achieved by the recent amended easement agreement. Instead, Mr. Brady chose to stay silent about what under his interpretation was a violation of the condemnation order until he was in a position to claim substantial money damages as a result.

The respondent's claims as far as they involve a limitation of access are without merit. So, too, are the speculative arguments he made concerning drainage problems, which were more than refuted by the expert testimony from the petitioner. As between the two assessors who testified it was petitioner's expert whose testimony was more credible. It was necessary to consider the highest and best use of the land, and petitioner's assessor made a strong case for the evaluation of parts of the southern portion of the land as property which could be developed commercially, a factor which respondent's assessor discounted. (On the court's inspection of the property it appeared that the southern portion is currently listed for sale as commercia land.) In addition, his discussion of the value of the remaining agricultural land was marked by close attention to the needs of farmers. The recognition that because the land was now bisected by the railroad right-of-way Mr. Brady has to turn his machinery twice as often, and that land required for turns cannot be farmed, were considerations that Mr. Brady's own assessor omitted. Moreover, they increased the damages that petitioner admitted it owes. Between details like these and the incorrect legal assumptions with which Mr. Brady's assessor began, the court has no hesitation about rejecting the respondent's findings in their entirety and adopting that of the petitioners. The court incorporates Mr. Helferich's proposed findings of fact by reference, and directs him to prepare an order awarding damages accordingly.

DATED: Rochester, New York

May 16, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New york Law journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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