New York State Court of Claims

New York State Court of Claims

WALSH v. THE STATE OF NEW YORK, #2008-028-001, Claim No. 104981


The State is liable to the owners of property located on either side of an at-grade railroad crossing when the crossing was removed without notification to the owners (Railroad Law § 97).

Case Information

1 1.The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
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Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

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Claimant’s attorney:
Defendant’s attorney:
BY: Michael Sims, Esq.Assistant Attorney General
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Signature date:
January 17, 2008

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See also (multicaptioned case)


The trial of this action has been bifurcated and this decision deals solely with the issue of liability. The essential facts giving rise to this action are not in dispute. Claimants Alice P. Walsh and Rosemary F. Biggi-Zweig own 24 acres of land located in Columbia County south of the Village of Castleton-on-Hudson in the Town of Schodack.

The property lies between the east bank of the Hudson River and Route 9J and is divided into two parallel sections by a railroad line that runs in a north-south direction. The westernmost section consists of 4.73 acres[2] and is bounded on the north and east by railroad-owned lands; on the west by the Hudson River; and on the south by land belonging to others, a portion of which was appropriated by the State of New York in October 1980. The other, easternmost, section consists of 19.3 acres and is bounded on the north by the Village boundary, on the east by New York State Highway Route 9J, on the west by lands owned by the railroad, and on the south by land belonging to others. This property was conveyed to claimants in 1968 by Donald Walsh, the husband of claimant Alice Walsh, and he has continued to act as claimants’ agent. Walsh originally acquired the property in 1962. The railroad track and bed bisecting the property is owned by CSX Transportation, Inc. (hereinafter “CSX”), which acquired it when it took over Conrail’s assets in 1999. That property was leased to Amtrack, which maintained the track and the at-grade crossing located on the land.

This at-grade crossing was located at milepoint 133.85 on the track, and throughout the trial it was frequently referred to as “Walsh’s Crossing.” The crossing had been a feature of the property for as long as any witness could recall. There was no documentation that clearly established when it had been built or whether the railroad itself had been built across a pre-existing (and still existing) dirt or dirt and gravel road leading from Route 9J west to the river and then south along the riverbank. Donald Walsh testified that when he first saw it, the crossing was built of planks that went up at an angle for 8 or 9 feet to the level of the railroad tracks and then down in a similar fashion on the other side. This structure was replaced, during the time that Walsh himself owned the property, by another plank structure, and eventually, after title was transferred to claimants, by an asphalt crossing. Walsh stated that he did not request the replacement on either occasion, nor did he or claimants pay for any of the work.

In May 2001, following a series of events set forth in greater detail below, the crossing was removed from the tracks and a barricade erected so that vehicular traffic could no longer travel along the dirt road from Route 9J all the way to the Hudson River. Testimony of employees of CSX and the New York State Department of Transportation (hereinafter “DOT”) established that this removal was carried out by Amtrack, at the direction of CSX and with the knowledge and approval of DOT, as part of a high speed rail initiative that had begun in 1998.

Removal of the crossing was possible and permitted, defendant contends, because it was determined that there was no “legal justification” for it to exist. Claimants, who were unaware of the removal until after it had occurred, assert that DOT was aware of their interest in the crossing and of the fact that they had a legal right to be heard before it was removed.

The property over which this crossing was placed, and the railroad tracks that it crossed had been acquired by the Hudson River Rail Road Company in 1850 (Exhibit O [original map, dated July 2, 1850]). The strip of land was acquired that year from the then owners of the property, Sage and Harder (Exhibits K, L [deeds]), and neither the map of the Hudson River Railway Co. or the deeds from Sage and Harder make any reference to a rail crossing or to any road going across the property.

In 1898, former section 52 of the Railroad Law was enacted to, among other things, regulate the existence of public and private rail crossings. Clarence W. Scott, a DOT employee who oversaw the State’s grade-crossing program from 1995 to 2005, testified that after 1898 the statute provided that any public road that crossed a railroad track that existed prior to that date was grandfathered in, but thereafter an administrative regulatory process was required before any road could be classified as a public crossing. Private crossings were allowed to exist for only three reasons: 1) agricultural use, 2) provision in a deed, or 3) agreement or contract.[3]

In 1974, the Federal Railroad Administration required a nationwide inventory to be made of all rail crossings. The inventory was carried out by the railroads themselves and the information gathered on forms developed by the Federal authority. For the private crossing at milepost 133.85 on the Hudson Line the inventory form (Exhibit M-1) indicated the following:

Road or street name: Private road

A. Recreational (other choices were “Farm,” “Residential” or “Industrial”)

B. at grade (other choices were “RR under” or “RR over”)

C. none (other choices were “signs-specify” or “signals-specify”)

In 1994, section 97 of the Railroad Law was enacted and, according to Scott, this change resulted in much greater involvement by DOT, which previously had had no regulatory control over rail crossings. Subdivision (3) of the statute provides, among other things, that in order to provide for the public safety, the Commissioner of DOT can require alterations or closings of existing private rail crossings that are located on an intercity rail passenger service corridor, such as the Hudson River corridor. Any such alterations or closings are to be effected by agreement between “the railroad owning the crossing, property owners who are directly impacted by the crossing and the department” and, if such an agreement cannot be reached, the DOT is to conduct a hearing on the need for such alteration. With respect to lands that are open to the public for recreational use, the statute further requires that public comment must be sought and prohibits closure of any such crossing unless it is determined that there is a reasonable alternate route to such lands. This meant, according to Scott, that after 1994 there were two optional ways in which a private rail crossing could be closed: 1) “the railroad can close them if there’s no legal basis to keep them open” (Tr, 567-568), or 2) they could be subjected to a regulatory hearing process. It must be noted, and will be discussed later, that Scott’s description of the State’s power in connection with altering or removing private rail crossings differs slightly from the statutory provision. The series of events that led to the removal of Walsh’s Crossing began in 1998 with the Governor’s high speed rail initiative, which made it necessary for DOT and the railroad to look at the many at-grade rail crossings along the Hudson corridor. According to Seth Edelman, who worked in the DOT division of grade crossings for that area, each crossing along the route was investigated to determine if it was active or could be removed. Particular attention was given to the high risk area between Stuyvesant and Rensselaer, where Walsh’s Crossing was situated.

On March 29, 2000, Scott, as Director of DOT’s Intermodal Projects Bureau, wrote to CSX’s Chief Engineer, Hugh H. Hopkins, explaining that the letter was related to New York’s active effort to “reduce the total number of railroad grade crossings statewide” (Exhibit 9). He stated that Walsh’s Crossing (described in the letter as the “location at MP 133.85") had been identified as one that “appears to provide access over the tracks to lands owned by CSX[4] and has historically been used to access land on Schodack Island.” Because a bridge was currently being constructed at milepost 133.25, he stated, “we request that CSX close this private crossing - or provide some evidence that there is legal justification for this crossing to remain in place.” After sending the letter, Scott asked Edelman to follow up and conduct a field review.

CSX sent a formal reply to DOT by letter dated July 19, 2000, from the company’s Principal Engineer for Public Improvements, Carl Roe, and addressed to Scott (Exhibit 14-25). He stated that they had investigated the matter and found no documentation evidencing any private grade crossing agreement or any language in the original deed conveying the property to the Hudson River Rail Road to indicate that the original owner or subsequent owners of the adjacent properties had requested that such a crossing be established. Consequently, he stated, “we are making arrangements for the crossing to be posted with a notification that it will be removed within 30 days unless any users or the adjacent property owners are able to provide to CSX adequate documentation justifying their right to the continued need and exidstence of this crossing by virtue of that documentation.” Should no such documentation be provided, Roe stated, CSX would then arrange for the crossing to be removed.

Subsequently, in July, September and November 2000, Edleman e-mailed Carl Roe asking for updates on the situation regarding the private crossing at milepost 133.85. In the July 7 e-mail (Exhibit G-1), Edelman stated:
You may not remember Ike’s [Scott’s] letter to Hugh Hopkins on this subject, but he does. He did not get the message at our meeting in Ja[n] that you guys were going to pretend you never got it.[5] He’d like to know when you are going to close the crossing or respond with a “legal justification” for keeping it open. Please let me know or tell me to whom in CSX I should be forwarding this follow-up request.

In the September 9 e-mail (Exhibit G2), he repeated the inquiry:

Your letter to Ike Scott of July 19, 2000 indicated CRX’s intention of posting a notification of removal at the referenced crossing. I would like to know on what date that was done, whether CSX has received a filing from any adjacent landowners, and the status of the crossing removal.Finally, on November 13, Edelman included a copy of his September inquiry and stated, “Ike wants me to write a letter regarding the above crossing and the apparent inaction of CSX. To whom should I direct it, please?”
On November 16, Scott himself sent a letter to CSX Chief Engineer of Design and Construction, now an individual named Dale Ophardt, (Exhibit G3), in which he stated that because of DOT’s efforts to establish a high speed rail improvement on the Hudson line, it was increasingly important to address grade crossing issues. The crossing at MP 133.85 “was identified as a site where there appeared to be no legal justification for its existence,” he stated, and, mentioning Roe’s letter of July 19 which indicated that notification would be posted, Scott requested: “Please advise this office if this private crossing has now been removed or what actions CSX intends on taking to resolve this matter.” As noted above, the crossing was physically removed in May 2001.

Claimants Alice Walsh and Rosemary Biggi-Zweig and their agent, Donald Walsh, all testified that they were not notified of the impending removal of the crossing, had seen no signs or other information indicating that a closing was being contemplated, and had given no one permission to remove the crossing. Both claimants stated that they were aware of the dirt road and the crossing and had, in the past, gone on the property to take walks or drives along the river, although neither had been there in the past 10 or 15 years. They understood that others went onto the land and made use of the crossing for hikes, to pick berries, for bicycling, and perhaps for snowmobiling. Alice Walsh stated that she believed the property had been farmed before they acquired it but, to her knowledge, it had never been used for logging or to extract minerals.

Donald Walsh testified that he typically drove past the property six to eight times a year, principally to check for trespassers. He did not frequently go all the way down the dirt road, however. He stated that he first saw the barrier closing off the crossing in July 2001, and he had no idea who had put it up. He spoke with claimants and, after learning that neither of them had given permission, contacted the railroad to find out who had erected it and why. This action was commenced shortly thereafter.[6]

Walsh acknowledged that he was aware of no documentation granting the landowners use of the crossing. However, he and claimants had made use of it during the several decades they owned the property, and others, including DOT itself, had recognized and acknowledged that they did so. The railroad crossing was already in place when Walsh purchased the property in 1962 and, in fact, it had been there since he moved to the area in the 1950s. He often made use of the crossing himself, both when he owned the land and later as claimants’ agent. He had also had communications over the years with various officials and individuals regarding the property and requests to use the crossing. These included the State Department of Parks and Recreation, NiMo (Niagara Mohawk Power Co.), the Coast Guard, the Army Corps of Engineers, town officials, and private individuals. Walsh could recall about 20 such requests. During the 1980s, a farmer named Eddie Swatz received permission to use the land, on both sides of the railroad tracks, for farming. The Department of Parks and Recreation had used it to carry out soil testing, and at one time, had investigated the possibility of using the land, and the crossing, to provide access to a new State Park being developed on Schodack Island.[7] In addition, a Schodack Town Supervisor requested access to allow Indian tribes to conduct ceremonies on the southern part of Schodack Island, and other individuals approached Walsh for permission to pick berries or for similar purposes.

For several years, DOT itself had accessed claimants’ property pursuant to a Temporary Use and Occupancy of Private Property Agreement, which was executed by both DOT and claimants, to obtain access in order to work on dredging a navigation channel in the Hudson River (Exhibit 1).[8] The agreement stated that it was for access only, specifically “[a] couple of bulldozers and some personnel will be moved to the Federal site where all of the work will take place.” The existence and anticipated use of the rail crossing was acknowledged by the following statement: “Crossing the railroad tracks will be subject to conditions established by DOT relating to use of tracks by proposed fast train travel.” Pursuant to this agreement, claimants received a total of $5,425.00 over the period from 1994 to 1996 (Exhibits 4, 5, 6 [vouchers]).[9]

In 1980, the New York State Department of Parks and Recreation appropriated some of claimants’ land for the Castleton State Park project. The appropriation consisted of 1.53 acres along the shoreline of the Hudson River, at the southern end of the property. This appropriation resulted in a Court of Claims action (Claim No. 65538) that was decided, after trial, in May 1988. In his decision fixing just compensation for the taking, former Judge Louis C. Benza stated the following with respect to Walsh’s Crossing:
The parcel is effectively divided into two long rectangular sections by a railroad line running north/south through the center of the property, the bed of which is approximately 10 to 12 feet above grade. . . . Access between the two areas was provided by a gravel road which crosses over the railroad at the northerly section of the land. This road is then extended southerly the length of the property along the Hudson River.
(Walsh v State of New York, Claim No. 65538, filed May 9, 1988, Benza, J., affd on opn below 155 AD2d 832 [3d Dept 1989] [Court Exhibit 1]). In response to the State’s argument that because of the railroad line bisecting the property it was notable to be developed to a highest and best use as marine commercial, claimants established that they had a right to use the rail crossing and that there was a mechanism by which the crossing could be upgraded if that were needed. A Conrail official testified at trial that, although his records disclosed no existing permit for the crossing, they did show “the existence of said crossing as a private road.” He further testified that any request the property owners might make to upgrade the crossing would be subject to the same tests that would apply if their request were for a new crossing to be created. Judge Benza concluded that there existed a reasonable procedure “by which their use of the present crossing could be increased and that necessary improvements to the crossing were feasible.” In reaching the latter conclusion, the judge noted that the crossing as it existed had already been shown to be adequate to permit access to the riverfront with tractor-trailers by the U.S. Army Corps of Engineers and with flatbed trucks loaded with electric transmission towers by the power company.

Over the years, there were a series of gates erected on the dirt road. A farmer who owned land south of claimants’ property, Freddie Viabrel, asked if he could put up a gate to keep people from using the road to steal his corn. Permission was given and a gate was put up on the west side of the railroad tracks, between the crossing and the river. There was a lock and Viabrel gave Walsh a key. That gate was removed approximately two weeks later, and Walsh did not know who took it down. The railroad itself erected a rather flimsy gate at the same location as Viabrel’s had been, but it also was soon torn down. Walsh then agreed that the railroad could build another gate and was told that he would get a key, but that gate too was taken down quickly thereafter. At another location, much closer to Route 9J, Walsh himself put up a gate to discourage use of the road by ATV riders. His first structure was quickly torn down, but soon after, with the knowledge and assistance of the railroad, he put up a more sturdy one, using concrete footers, posts provided by the railroad, a chain across the road, and a lock also provided by the railroad. He provided keys to the lock to NiMo, the Village, and the Coast Guard, in case they needed access in an emergency. On September 5, 1995, Walsh wrote an Assistant ROW (Right of Way) agent with DOT, returning the signed Temporary Use and Occupancy Agreement, (Exhibit C). In that letter, he asked that he be informed when the contractor planned to come onto the land, told DOT that there was a gate, and gave directions where they could obtain a key if a specific State key, which he had been told would fit the lock, did not work (Exhibit C).

Regarding the investigations that were made to determine if there was “legal justification” for keeping Walsh’s Crossing open, several employees of both DOT and CSX testified. Carl Roe, Jr., of CSX, testified that he was familiar with the crossing on claimants’ land and that, as a Conrail employee, he had visited it in 1992 and 1999. On those occasions he used a passenger vehicle, parked on the eastern side of the crossing, and walked to the western portion. He did not recall seeing any evidence of farming upon the land on either occasion. In 1998, DOT had actually scheduled a “regulatory show-cause hearing” to be held July 23 to determine the needs or rights with respect to that crossing. From his records, however, it did not appear that the hearing was ever held. All he could find was a July 7, 1998 fax from DOT stating, “As discussed, the hearing tentatively set for 7/23 now looks less likely - we will try to let you know more definitively about this as well” (Exhibit C-22). Roe was unfamiliar with the process of having a hearing before an Administrative Law Judge (hereinafter “ALJ”) to determine the rights and needs relating to a private crossing, and he was not aware of any being held prior to May 2001, when Walsh’s Crossing was closed.

Upon receipt of the March 29, 2000 letter from DOT (Exhibit 9), Roe began an investigation to see if CSX or Conrail had any record of anyone with deeded or contractual rights to use the crossing. At the time in question, he said, there were no firm guidelines to be followed, most likely because there had not yet been a large number of closings of private crossings. After searching for any deeded rights or any agreements between the railroad or its predecessor and an owner of the property regarding the establishment of the crossing, Roe concluded that there were no such records in custody of the railroad.1[0] He further determined that the western part of the property could now be accessed by way of the newly constructed bridge to Schodack Island, so no landlocked situation would be created if the crossing were closed. Roe stated that he never spoke to or had any communication with Donald Walsh during this period.

As noted above, Roe wrote to DOT on July 19, 2000 to inform them that no records had been found and to inform them that the crossing would be posted for possible closing (Exhibit 16). The notice that was to be posted would have informed anyone interested in the potential closing to call a certain telephone number. (The number would have reached the CSX Property Services Office in Florida.) No final decision would then be reached until 30 days after the posting was accomplished. If private individuals responded to the posting during that time, Roe stated, their concerns would be considered in making a final decision about the closing. If there was no response to the posting, CSX would simply proceed with arrangements to close the crossing. Roe could not attest, however, that the anticipated closing of Walsh’s Crossing was ever posted. He said that he simply sent a copy of the July 19, 2000 letter to his CSX staff and expected that the posting would be carried out.

Anthony Radzikowski, a project engineer for CSX, testified that he had been involved in investigations and that, although he discovered that the Army Corps of Engineers had used the crossing from 1990 to 2001, they could find no record of any use for the decades before 1990. He also confirmed that the 1850 deed conveying the track bed to the Hudson River Rail Road Company contained no language reflecting the grant of a right of way or reservation of rights. Radzikowski spoke by telephone with Carl Roe, discussing DOT’s March 29 letter and the fact that they had discovered nothing in their search. They concluded, therefore, that there was no legal justification for maintaining an at-grade crossing at that location. Radzikowski stated that he did not know and did not learn until much later the identities of the landowners whose property was on either side of Walsh’s Crossing.

After reaching the conclusion that there was no legal justification to continue the crossing, Radzikowski gave directions to the CSX maintenance department to post the notification at the crossing announcing that its removal was being considered. Referring to procedures that he had followed in the past when working for Conrail, he stated that anyone who expressed an interest in an at-grade crossing that was slated for removal would be given a packet explaining how to apply for a contractual right of way from the railroad. If no one expressed objection to a proposed closing, then the crossing would be removed. Radzikowski was not able to confirm that the posting had been accomplished at Walsh’s Crossing, only that he gave directions for it to be done.

He was also the person who instructed Amtrack to close the crossing, an action he carried out at the direction of Carl Roe. Amtrack personnel, under the direction of Andy Keefe, supervised the removal of Walsh’s Crossing, putting in a pile of ballast stone and erecting a barricade. In this fashion, the crossing was closed to vehicular use. In a telephone conversation held a few weeks before the removal, Keefe had informed Radzikowski that no one used this crossing, that it was in bad shape, and that Amtrack would “love” to see it removed.

Clarence Scott, DOT’s Director of Intermodal Projects Bureau, testified that if the railroad determined that there were no agricultural use, deeded crossing rights, or crossing agreements, the Bureau then would post a notice at the location.1[1] If no one came forward in response to the posting, the railroad would then direct that the crossing be removed. If there were objections and a regulatory process were required, then a “show cause hearing” would be held. The hearing would be announced by a notice published in a local paper and conducted by an ALJ. After considering the evidence and any post-hearing memoranda, the ALJ would write a decision, which DOT’s Commissioner would then consider in finally determining the matter. After sending the March 29, 2000 letter to CSX, asking them to search their records for anything relating to the crossing, Scott asked Seth Edelman to follow up and to conduct the field review for DOT. When no farming activity, deeded rights or contractual agreements were found, Scott also concluded that there was no justification for keeping the crossing open.

Seth Edelman, the DOT employee in the division of grade crossings at the time in question, testified that he, too, attempted to investigate the possibility that there was a legal justification for the crossing to remain. In particular, he was looking for any evidence of agricultural use, rights conveyed by deed, and/or any agreement between the landowners and the railroad. To determine if there was any agricultural use that might be affected, he asked long-time DOT staff members if they had any recollection of farming done on that property, especially on the river side beyond the crossing. He also spoke with the Village mayor, the DOT Region 1 Office, and other individuals whose names he does not recall. Everyone he spoke with said that the land beyond the crossing was not used for agriculture. He also reviewed whatever materials he could find and discovered no indication that anyone had a right to use the crossing.

Edleman acknowledged that he had not done any at-grade crossing closings before January 2000 and therefore had little experience in carrying out this type of work. When he was shown Exhibit 1, the Temporary Use and Occupancy Agreement in effect from 1994 to 1996, Edelman acknowledged that it contained a reference to a rail crossing and how it would be used. In response to a question, he stated that he had no idea why DOT would enter into such an agreement with claimants if there were no legal justification for the crossing to be continued. He said that he had not inquired of other branches of DOT, or other State agencies, to see if they might have any records relating to the crossing that is the subject of this claim.
The critical question presented in this case is not, as defendant argues, whether claimants had a deeded interest in or easement to Walsh’s Crossing, or whether they had a statutory or judicially determined right to access the railroad crossing. The central inquiry is whether DOT acted lawfully in approving removal of the crossing.

Section 97 of the Railroad Law, which both parties acknowledge as applicable to the alteration or closing of private railroad crossings in 2001, gives the Commissioner of DOT the authority and obligation of overseeing such alteration or closings. The statute further provides two methods for achieving an alteration or closure: 1) by agreement between the railroad, “the property owners who are directly impacted by the crossing,” and DOT, or, 2) if an agreement cannot be reached, by conducting a hearing to determine the need for such alteration or closure and whether other alternatives are available. It was not simply a matter, as Scott testified, of the railroad removing a crossing “if there’s no legal basis to keep [it] open.” The statute does not contemplate a simple determination, by either the railroad or DOT, that no legal basis exists but, rather, requires either an agreement between the parties – including property owners impacted by the crossing – or a regulatory hearing at which, of course, interested parties could have a voice. Regulations eventually adopted in 2002, after the events giving rise to this claim, also make it clear that property owners impacted by the removal of a crossing were to have an opportunity to be heard before the closing was carried out. 17 NYCRR § 919.4 reads, in relevant part, as follows:
The commissioner [of DOT] may require alteration or closure of any existing private rail crossing, including farm crossings, located in an intercity rail passenger service corridor. . . . Such alteration or closure as reflected by plans, specifications and other documents deemed necessary by the commissioner must be submitted for review and written approval of the commissioner before such alteration or closure can be made. In the event that the railroad owning the crossing, the property owners directly impacted by the crossing, and the department cannot agree with respect to the alteration or closure of an existing private rail crossing, the commissioner shall conduct a hearing on the need for such alteration or closure and whether any other alternatives are available.
There has been relatively little caselaw interpreting or applying the provisions of this statute and none that addresses the issues raised here (see e.g. Matter of Long Is. R. R. Co. v Madison, 44 AD3d 1183 [3d Dept 2007] [upholding a determination by DOT to allow a private crossing to remain in place, over objections by the railroad]; Marlyn Warehousing v Long Is. R.R. Co., 123 AD2d 348 [2d Dept 1986][successful application for a preliminary injunction to allow landowner to keep using a private crossing]). While not directly on point, the disputes that gave rise to these cases do suggest that there is frequently a tension between the affected landowner and the entity seeking to close one of these private crossings. In the instant case, it appears that DOT, CSX, and even Amtrack were unified in their desire to remove this private, at-grade crossing, which raises concern about the adequacy of the “investigation” that was conducted.

Determining who, to use the statute’s language, might be a “property owner [] who [is] directly impacted by the crossing” is not a difficult matter, particularly in this case. Here, the purpose of the crossing, whenever it was established, could only have been to convey access to people, and perhaps livestock and vehicles, from the eastern section of property (between Route 9J and the railroad) to or from the western section of the property (between the railroad and the Hudson River) and both of those sections of property were owned by the same people. It was claimants, or their agent Donald Walsh, who would be most likely to have any documentary record of agreements, easements, or other contracts relating to their use of the crossing; they were the ones who could quickly provide information about any farming activity that may have taken place on the land; and they clearly fit the statute’s description of one of the three parties who must reach agreement if a crossing is to be closed without a hearing. Communications with the owners and/or their agent would also be quite simple; other government agencies had no difficulty in locating them when they wanted to gain access to the property for their own purposes or, one suspects, when there was a tax bill to be sent.

The procedure of physically posting notice at the property in question, so that anyone with an interest has an opportunity to speak up, is undoubtedly a good one, for there may well be others in addition to the adjoining property owner(s) who would be impacted by the crossing’s removal. The Court questions, however, whether merely posting a sign without making any effort to contact the owners of record of the adjoining lands would suffice. Owners of unimproved land do not necessarily live near the property, nor do they always visit such property on a frequent basis. Even owners who live nearby and are often on the land they own may be away for a period of 30 or 60 days. In the normal case, and certainly in the situation presented here, there would be no difficulty identifying and communicating with the owners of property located on either side of a private railroad crossing. Although neither the statute nor the regulations subsequently adopted spell out the step by step procedures that must be followed in bringing about the required agreement or hearing, surely direct notification of those property owners is required, since the statute gives them a voice and role in the proceedings. If Claimants had been contacted, they would have readily provided ample documentary evidence that they were impacted by the crossing and thus had a right to be heard. This evidence would include, but not necessarily be limited to, the Temporary Occupancy and Use Agreement, the vouchers that represent payment from the State for access to the land and use of the crossing, and Judge Benza’s decision in the eminent domain proceeding.1[2]

In any event, the Court finds that there was no compliance with even the less direct and less effective notification procedures that witnesses for both CSX and DOT acknowledged should have been followed. No one who testified could confirm that signs had in fact been posted and allowed to remain in place the requisite amount of time, only that subordinates were told to carry out that duty. If there was someone who could confirm that the posting was accomplished, either a local witness or a CSX employee, the Court is convinced that defendant would have produced them at trial. More to the point, DOT (Ex. 9) was aware that such posting was going to be done, knew that they had not been given the information that it had been accomplished (see Exhibits G-1, G-2 [Edelman e-mails]), and nevertheless went ahead and urged that the closing be carried out. If the March 29, 2000 letter from DOT can be interpreted as merely an initial inquiry rather than the “written approval” called for in the statute, the agency’s November 16, 2000 letter (Ex. G3) certainly, and expressly, gives the necessary approval.

This is not the role envisioned for DOT by the statute. Pursuant to Railroad Law § 97, before DOT can give the requisite written approval for a private rail crossing to be closed, the statute imposes a duty on the Commissioner to either confirm that there is an agreement between the interested parties or to hold a regulatory hearing to permit all parties to be heard.

It is not necessary for the Court to decide what would have occurred if claimants had received the notification to which they were entitled prior to removal of the crossing. That is a matter for the damages portion of the trial, and the Court will not speculate as to what claimants will, or will not, be able to prove in that regard. It is sufficient on the issue of liability to hold that the State approved the closing of this at-grade rail crossing without carrying out its statutory duty either to assure that all interested parties, including the adjoining landowners, had reached an agreement or to conduct a hearing at which such landowners, if they wished, could be heard.

The Chief Clerk is directed to enter judgment in favor of claimants on the issue of liability, and the parties are directed to contact the Court in order to schedule a trial on the issue of damages.

Let interlocutory judgment be entered accordingly.

January 17, 2008
Albany, New York

Judge of the Court of Claims

[2]. At the time claimants acquired the property, the section between the railroad and the river was 6.26 acres, but it was reduced in size by an appropriation by the Department of Parks and Recreation, discussed infra.
[3]. This description of the legal justification for private crossings is echoed in the current statutory protection given to “farm crossings” (Railroad Law §52) and the regulatory definition of “private rail crossing” (17 NYCRR §919.1[f]): “A crossing which traverses the track for use by a private party and its invitees as established through a deed or an agreement with the railroad or right-of-way owner.” An example of a private crossing agreement between a landowner and the railroad and a letter cancelling such agreement were provided at trial (Exhibits J-1, J-2)
[4]. Neither party identified any land belonging to CSX that can be reached by the dirt/gravel road that went over Walsh’s Crossing.
[5]. In April 2000 there had been a meeting at the CSX headquarters in Jacksonville, Florida, attended by Scott and Edelman, to discuss a number of topics, including private-crossing closures. Neither counsel inquired into the cryptic comment about CSX’s apparent decision to pretend they never received the March 29 letter.
[6]. Defendant has argued that this claim must be dismissed as untimely, but a defense of that nature must be raised in the answer or pre-answer motion or it is waived (Court of Claims Act §11[c]). In its answer, defendant’s only allegations raising this defense was its sixth affirmative defense, in which it is alleged that the cause of action “accrued upon the posting of the crossing” and the claim was not filed and served within 90 days of that date. Because, as explained below, the Court finds that no notification was ever posted, the defense must fail.
[7]. It was determined that the railroad ran too close to the river at that location to construct an elevated crossing. Eventually a new road and bridge to Schodack Island were built south of claimants’ property.
[8]. There is reference in the 1994 agreement that it supplements a previous agreement dated December 7, 1992, so the arrangement may have existed for a longer time.
[9]. The Court rejects defendant’s argument, made in its post-trial submissions, that this Temporary Use and Occupancy Agreement related perhaps to another location further south and referenced a different rail crossing than the one at Milepost 133.85. The agreement was quite clearly between claimants and DOT. It conveyed claimants the right of access onto their property and referenced a rail crossing, and based on all of the evidence submitted at trial, the only rail crossing on property owned by claimants is the one located at Milepost 133.85.

1[0]. When questioned, Roe testified that at no time was he told about or aware of the 1980 appropriation of a portion of claimants’ property by the State of New York or Judge Benza’s decision which included recognition of claimants’ right to make use of the crossing.
[1]1. Scott indicated that the notice would be posted for 60, rather than 30, days.
1[2]. While defendant is correct in that Judge Benza’s decision did not fully litigate the issue of whether claimants had a clear right to make use of the crossing, it did establish that all parties – the claimants, the State, and Conrail – acknowledged prior use of the crossing by claimants and assumed future use. The Court rejects defendant’s argument that the decision put claimants on notice that in order to have such access in the future, they should avail themselves of the available procedures in order to secure a right to use the crossing. A fair reading of the decision indicates that he cited those available procedures as a basis for finding that the existence of the railroad tracks bisecting the property would not prevent them from applying for and likely securing an agreement to increase their access and improve the crossing so as to develop the land for its highest and best use.