Opinion
Argued March 25, 1985
Decided April 25, 1985
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department.
Bernard E. Gegan, Thomas M. Taranto and Roger J. Schiera for appellant.
Michael Lesch, Ronald D. Lefton and David H. Pikus for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs, and the question certified not answered as unnecessary.
This is a proceeding under EDPL 207 to review the determination of respondent, Long Island Lighting Company (LILCO), to acquire certain limited easements in real property and rights of way owned by appellant, Long Island Rail Road Company (LIRR). The Appellate Division held that LILCO had the statutory power to condemn LIRR's property even though devoted to a prior public use because the presence of LILCO's facilities on the rights of way will not cause substantial interference with LIRR's operation. In this court, LIRR centers its argument on the alleged material interference with its operations, an argument we reject for the reasons stated by Justice James F. Niehoff at the Appellate Division ( 103 A.D.2d 156, 167-168).
Appellant's remaining contentions, three of which we address specifically, are similarly without merit. First, the easements do not effect a taking of LIRR's skill and labor, because LIRR has no obligation to furnish them. Rather, LIRR has the right to approve modifications of circuits, to review and approve plans prior to the relocation, maintenance or repair of facilities, and to provide flagmen in connection with these activities — at LILCO's expense — if it chooses. Second, since the services of LIRR's personnel are not being "taken", it follows that the fact that LIRR may in the future be reimbursed for the cost of such services does not violate the requirement that the condemnee receive just compensation at the time of the taking. Third, while appellant argues that the various covenants contained in the proposed easements are mere "promissory stipulations", the scope of the condemned easements is determined not by extrinsic promises but by the covenants contained in the recorded document itself, which limit and define LILCO's interest.
Judges JASEN, MEYER, SIMONS, KAYE, ALEXANDER and KANE concur in memorandum; Chief Judge WACHTLER taking no part.
Designated pursuant to N Y Constitution, article VI, § 2.
Order affirmed, etc.