Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the January 6, 2015 mailing of "Constructive Notice":

The Lowdown on the High Line

The High Line is a public park created on a long-unused elevated railroad corridor along the west side of Manhattan. Legally, the elevated tracks traverse an easement through the airspace above the ground-level parcels below. The fee owner of one such parcel alleged the conversion to park use under the federal “Rails-to-Trails” program resulted in a taking, and sued for damages. Romanoff v. U. S., #11-374, Court of Federal Claims (filed under seal October 20, 2014, unsealed November 20, 2014).

The Court disposed of the matter by construing the actual language of the original easement grant. The 1932 instrument conveyed a perpetual easement “for railroad purposes and for such other purposes as the [grantee and] its successors … desire to make use of the same....” Because the easement was so broadly designed and had not been abandoned, the park use does not work a taking of the airspace. In addition, the court found no support for a finding that use of the corridor for the High Line significantly overburdens the servient estate.


Although “Rails-to-Trails” is a federal scheme, the interests of affected parties are determined pursuant to state law property principles. The Romanoff holding is at odds with the legal fiction underpinning the Rails-to-Trails program. Under that rationale, “interim” trails are used “to preserve established railroad rights-of-way for future reactivation of rail service.” Typically, the permitted use of the easement need not extend beyond railway use. The critical issue is whether the easement has been abandoned prior to its designation as a “trail.”