Opinion
Decided June 9, 1987
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Norman E. Joslin, J.
David F. Kunz for Owasco River Railway, Inc., appellant.
David J. Seeger for Anna H. Orszulak, appellant.
Morgan L. Jones, Jr., for Somerset Railroad Corporation, respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
We agree with the Appellate Division, in view of the concessions of The Owasco River Railway (Owasco) and Supreme Court's findings, that Owasco had not acquired fee simple ownership of the disputed parcel through a conveyance evidenced by a deed, through an order of condemnation or through adverse possession, but that it had acquired only a prescriptive easement for railroad purposes by virtue of its use of the subject land, which has since been abandoned by Owasco. This record is devoid of any evidence demonstrating affirmative acts of ownership such as cultivation, improvements or enclosures to support a claim to fee simple ownership through adverse possession (see, Di Leo v Pecksto Holding Corp., 304 N.Y. 505, 510-512; RPAPL 522). Owasco introduced no evidence showing that the disputed land served any purpose other than to provide a place for railroad track (cf., O W Lines v St. John, 20 N.Y.2d 17 [fee simple ownership recognized in a railroad company where, in addition to its use of the land as a right-of-way, it had constructed passenger and freight depots]).
We also agree with the Appellate Division that, on the basis of a deed to Orszulak "excepting" a right-of-way for Owasco's predecessors from the land conveyed, Orszulak never acquired any right, title or interest in the disputed parcel (see, Corning v Lehigh Val. R.R. Co., 14 A.D.2d 156).
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), ordered affirmed, with costs, in a memorandum.