233rd Street Partnership, L.P. v. United States

Case: 25-1849 Document: 42 Page: 1 Filed: 10/20/2026 Note: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ 233RD STREET PARTNERSHIP, L.P., Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee ______________________ 2025-1849 ______________________ Appeal from the United States Court of Federal Claims in No. 1:23-cv-01358-LAS, Senior Judge Loren A. Smith. ______________________ Decided: October 20, 2026 ______________________ MICHAEL JAMES SMITH, Stewart, Wald & Smith, LLC, St. Louis, MO, argued for plaintiff-appellant. Also repre- sented by STEVEN WALD. MATTHEW OAKES, Environment and Natural Resources Division, United States Department of Justice, Washing- ton, DC, argued for defendant-appellee. Also represented by ADAM R.F. GUSTAFSON. ______________________ Before REYNA, BRYSON, and HUGHES, Circuit Judges. Case: 25-1849 Document: 42 Page: 2 Filed: 10/20/2026 2 233RD STREET PARTNERSHIP, L.P. v. US BRYSON, Circuit Judge. Appellant 233rd Street Partnership, L.P., filed a Fifth Amendment taking claim seeking compensation for a fed- eral taking effected by a Notice of Interim Trail Use under the authority of the National Trails System Act, 16 U.S.C. §§ 1241–49. On summary judgment, the Court of Federal Claims held that 233rd Street Partnership failed to show that it had an ownership interest in the property in dis- pute, and that its taking claim therefore failed as a matter of law. We agree with the trial court’s analysis and there- fore affirm. I 233rd Street Partnership owns property located at 170 West 233rd Street, Bronx, New York, that is bordered on one side by a rail corridor. The rail corridor, which runs for 0.77 miles, has been inactive since 1990. In the early 1870s, both 233rd Street Partnership’s property and the adjacent rail corridor were owned by John Bogardus. On April 1, 1872, the New York and Boston Railroad Company acquired a permanent easement to the rail corridor through condemnation proceedings. Shortly thereafter, on May 18, 1872, Mr. Bogardus executed a war- ranty deed conveying “in fee simple” the rail corridor to the New York and Boston Railroad. J.A. 415. The deed recites that it transfers “all the estate, right, title, or interest” held by Mr. Bogardus “in fee simple” to the parcel of land and affirms that the grantor “hath good right, full power, and lawful authority to grant, bargain, sell and convey the same.” J.A. 413–15. CSX Transportation, Inc., the successor-in-interest to the New York and Boston Railroad, operated its Putnam Branch on the rail corridor until its discontinuance in 1990. After the rail corridor’s discontinuance, the City of New York began planning to develop the corridor as a park. In December 2022, CSX sold the corridor to the City. The City Case: 25-1849 Document: 42 Page: 3 Filed: 10/20/2026 233RD STREET PARTNERSHIP, L.P. v. US 3 then petitioned the United States Surface Transportation Board to permit the corridor to be converted to trail use. On May 26, 2023, the Surface Transportation Board ap- proved the petition and issued a Notice of Interim Trail Use. On August 28, 2023, 233rd Street Partnership filed a Fifth Amendment taking claim in the Court of Federal Claims, seeking compensation for a federal taking of its al- leged property by the Notice of Interim Trail Use. The gov- ernment moved for summary judgment, arguing that 233rd Street Partnership lacked any property interest in the rail corridor. The Court of Federal Claims agreed with the gov- ernment, holding that the May 1872 deed unambiguously conveyed Mr. Bogardus’s property interest to the railroad in fee simple. The Court of Federal Claims explained that 233rd Street Partnership did not dispute the legality of the May 1872 deed but speculated that the deed was intended to convey only an easement, a notion that the court found “deeply unpersuasive.” 233rd St. P’ship, L.P. v. United States, 176 Fed. Cl. 697, 699 (2025). The Court of Federal Claims determined that 233rd Street Partnership did not own the property at issue, that there was no compensable taking of the property, and that 233rd Street Partnership’s Fifth Amendment taking claim failed as a matter of law. II 233rd Street Partnership’s principal argument on ap- peal is that under New York state law the later-signed deed should be read in conjunction with the earlier condemna- tion proceeding and that the Court of Federal Claims erred by refusing to look outside the four corners of the May 1872 deed to determine the parties’ intent. 233rd Street Part- nership contends that, if the trial court had properly con- strued the deed in light of the earlier condemnation proceeding, it would have determined that Mr. Bogardus conveyed only an easement and not a fee simple estate to Case: 25-1849 Document: 42 Page: 4 Filed: 10/20/2026 4 233RD STREET PARTNERSHIP, L.P. v. US the New York and Boston Railroad, leaving a right of re- version to 233rd Street Partnership, as Mr. Bogardus’s suc- cessor-in-interest. 1 This argument fails based on the unambiguous grant of a fee simple property interest in the May 1872 deed. A It is undisputed that, standing alone, the May 1872 deed conveyed to the New York and Boston Railroad, and thus to CSX as its successor-in-interest, ownership of the rail corridor in fee simple. The deed recites that it trans- fers “all the estate, right, title, interest” held “in fee simple” to the New York and Boston Railroad and affirms that Mr. Bogardus “hath good right, full power, and lawful authority to grant, bargain, sell and convey the same.” J.A. 413–15. 233rd Street Partnership makes no argument that lan- guage in the deed itself is at odds with the government’s contention that Mr. Bogardus granted the railroad a fee simple estate. See Appellant’s Br. 23 (“Mr. Bogardus and his wife executed a warranty deed which, on its face, pur- ported to transfer fee simple rights to the condemned prop- erty.”); Oral Arg. at 5:15–5:28, https://www.cafc.uscourts. gov/oral-arguments/25-1849_10052026.mp3 (conceding the May 1872 deed is not ambiguous). 1 If 233rd Street Partnership does not have a prop- erty interest in the rail corridor, it cannot bring a Fifth Amendment taking claim based on the Notice of Interim Trail Use. See ATS Ford Drive Inv., LLC v. United States, 136 F.4th 1066, 1070 (Fed. Cir. 2025) (“This case turns on whether the Releases conveyed fee simple estates or ease- ments to the . . . Railroad Company. If the Releases con- veyed fee simple estates, Appellants ‘would have no right or interest in those parcels and could have no claim related to those parcels for a taking.’” (quoting Preseault v. United States, 100 F.3d 1525, 1533 (Fed. Cir. 1996) (en banc))). Case: 25-1849 Document: 42 Page: 5 Filed: 10/20/2026 233RD STREET PARTNERSHIP, L.P. v. US 5 Instead, 233rd Street Partnership contends that the prior condemnation proceeding indicates that a lesser in- terest was conveyed to the New York and Boston Railroad. 233rd Street Partnership argues that the Court of Federal Claims should have held that the subsequent deed to the railroad was merely the completion of the acquisition of the easement granted in the condemnation proceeding. 233rd Street Partnership argues that the condemnation proceed- ing and the deed are inextricably linked because the two instruments were executed only a few weeks apart, in- volved the same strip of land, and both listed $750 as the sole consideration for the conveyance. The question in this appeal is thus whether the exist- ence of the prior condemnation proceeding granting an easement to the New York and Boston Railroad changes how the court should read the May 1872 deed. The answer is no. Under New York state law, when the language of the deed itself is clear, it controls. Modrzynski v. Wolfer, 651 N.Y.S.2d 782, 783 (N.Y. App. Div. 1996) (“It is only when language used in a conveyance ‘is susceptible of more than one interpretation’ that the courts will look into surround- ing circumstances.” (quoting Loch Sheldrake Assocs. v. Ev- ans, 118 N.E.2d 444, 447 (N.Y. 1954))); see also Margetin v. Jewett, 912 N.Y.S.2d 356, 358 (N.Y. App. Div. 2010) (“[U]nless the deed is ambiguous, evidence of unexpressed, subjective intentions of the parties is irrelevant. We reject plaintiffs’ contention that extrinsic evidence, i.e., a subse- quent tract map filed in 1914, more accurately describes the grantor’s intent. The language of each of the 1912 deeds is not susceptible of more than one interpretation, and thus consideration of the 1914 tract map as extrinsic evidence is unwarranted.” (cleaned up)); Perry v. Edwards, 913 N.Y.S.2d 460, 461 (N.Y. App. Div. 2010) (“We reject plaintiffs’ contention that the court erred in concluding that those deeds were unambiguous and that, upon consid- ering extrinsic evidence, the court should have concluded that the disputed strip of property belonged to them. The Case: 25-1849 Document: 42 Page: 6 Filed: 10/20/2026 6 233RD STREET PARTNERSHIP, L.P. v. US intent of the parties is manifested by the language of the deeds and unless the deeds are ambiguous, evidence of un- expressed, subjective intentions of the parties is irrele- vant.” (cleaned up)); Sunnyview Farm, LLC v. Levy Leverage, LLC, 202 N.Y.S.3d 797, 802 (N.Y. App. Div. 2024) (“[I]n line with well-recognized contract principles, the meaning of the deed is to be determined from its language, and extrinsic evidence may be taken into account only when that language is ambiguous.” (cleaned up)); cf. Roma- noff Equities, Inc. v. United States, 815 F.3d 809, 812 (Fed. Cir. 2016) (“New York law requires that the intent of the parties be determined based on the language of the grant.”). Relying primarily on Silver Beach Realty Corp. v. Geen- lan, 204 N.Y.S. 701 (N.Y. Sup. Ct. 1924), and Bradley v. Crane, 94 N.E. 359 (N.Y. 1911), 233rd Street Partnership argues that New York state law is not so stringent. 2 In Silver Beach, a town took an individual’s land for a high- way in 1800. The following year, the town commissioners and the individual executed another instrument that “re- cited that [the individual] had agreed to build a dock for the town where the road therein mentioned terminated, and that it had been thought expedient to extend the dock and make certain changes in the dimensions of the dock and in the location of the passage thereto, and that the dock and road had been completed agreeably to said alteration.” Silver Beach, 204 N.Y.S. at 702–03. The second instrument recited that “[t]he undersigned commissioners . . . do accept 2 At oral argument, counsel for 233rd Street Part- nership urged that New York state law is “unusual” in that it does not prohibit a court from looking outside the four corners of a document when the document is unambiguous. Oral Arg. at 6:45–7:10. This contention is belied by the body of New York state law, some of which is cited above. Case: 25-1849 Document: 42 Page: 7 Filed: 10/20/2026 233RD STREET PARTNERSHIP, L.P. v. US 7 said road and dock as they now are as a complete fulfill- ment of the agreement on the part of the [individual], and the [individual] does hereby convey to the town . . . the ground so taken and occupied as aforesaid.” Id. at 703. The Silver Beach court held that the second instrument granted only an easement for the right of way over the road, as “it [wa]s evident that the instrument in question, made in 1801, was merely intended to evidence the fact that the commissioners had again accepted the road and dock, with the alterations, for public use, and that [the individual] had signed the said second instrument merely to indicate that he acquiesced in the dedication of his land ‘so taken and occupied as aforesaid.’” Id. at 703–04. 233rd Street Partnership argues that the Court of Fed- eral Claims should have sought to ascertain the intent of Mr. Bogardus in making the subsequent deed, as the court did with regard to the second instrument in Silver Beach, and that extrinsic evidence in this case indicates that Mr. Bogardus’s intent in May 1872 was to transfer only an easement with a reversionary right. 233rd Street Partner- ship argues that Silver Beach is directly on point and that, in light of the first instrument, the Court of Federal Claims should have held that the second instrument conveyed only an easement. Silver Beach, however, is distinguishable from this case. The second instrument in Silver Beach explicitly re- ferred to the earlier proceeding. When a second instrument explicitly refers to another instrument, it is logical for a court to read the two instruments together to determine the meaning intended by the parties. 3 But that is not true 3 That principle accords with the New York state au- thorities cited by 233rd Street Partnership regarding when to read multiple written instruments together. 233rd Street Partnership cites several cases to argue that writ- ings executed between the same parties, at substantially Case: 25-1849 Document: 42 Page: 8 Filed: 10/20/2026 8 233RD STREET PARTNERSHIP, L.P. v. US of the May 1872 deed. The May 1872 deed does not refer to the prior condemnation proceeding and includes no lan- guage giving rise to any ambiguity or any suggestion that the deed conveyed something other than the complete and total grant of a fee simple property interest to the New York and Boston Railroad. Under New York state law such unambiguous language is determinative of the parties’ in- tent, and we will decline 233rd Street Partnership’s invita- tion to consider extrinsic evidence regarding the meaning of the May 1872 deed. At oral argument, 233rd Street Partnership relied heavily on the New York Court of Appeals decision in Brad- ley v. Crane to argue a deed given in lieu of a condemnation proceeding should be construed strongly in favor of the landowner and that the second instrument in this case therefore cannot be read under New York state law to con- vey a fee simple estate to the railroad. Oral Arg. at 7:11– 7:40, 10:54–13:28. The court in Bradley, however, deter- mined that the written instrument in that case was ambig- uous and that extrinsic evidence needed to be considered to the same time, and relating to the same subject matter should be read as one. Those cases turn on the fact that one agreement references the other or that neither agree- ment can be understood without reference to the other. That cannot be said of the May 1872 deed at issue in this case. The cases cited by 233rd Street Partnership on when to read multiple instruments together reaffirm that the in- tent of the parties controls, see Commander Oil Corp. v. Advance Food Serv. Equip., 991 F.2d 49, 52–53 (2d Cir. 1993) (“Whether multiple writings should be construed as one agreement depends upon the intent of the parties.”), and as we have explained, our search into the intent of the parties here is bound by the unambiguous conveyance in the May 1872 deed. Case: 25-1849 Document: 42 Page: 9 Filed: 10/20/2026 233RD STREET PARTNERSHIP, L.P. v. US 9 determine the intent of the parties. See Bradley, 201 N.Y. at 18 (“This litigation is based upon the assumption that the effect of the conveyance of March 24, 1795, must, be- cause of the indefinite language thereof, be determined through interpretation proceeding from and guided by its contents and a knowledge of the facts and conditions exist- ing when and under which it was executed.”). The instru- ment at issue in Bradley contained no definitive statement granting a fee simple interest, and in fact the court ex- plained that “[t]he language of the instrument, like that of the statute of 1787, was capable of transferring a fee or an easement. It did not definitely specify the character and nature of the estate conveyed.” Id. at 24. In that respect, Bradley is clearly distinguishable from this case. Here, the May 1872 deed is unambiguous in its grant of a fee simple estate to the railroad. That is the end of the inquiry as to the intent of the parties as to what property interest was conveyed. Because the New York and Boston Railroad, and thus its successor-in-interest CSX, held the rail corridor in fee simple, 233rd Street Partnership has no property interest in the rail corridor on which to rest a claim for a taking. B Having determined that the May 1872 deed unambig- uously granted the New York and Boston Railroad a fee simple interest in the rail corridor, only one minor point remains. 233rd Street Partnership contends that the New York and Boston Railroad was already under an obligation to pay Mr. Bogardus $750 based on the condemnation pro- ceeding, regardless of whether he executed the later deed, and thus Mr. Bogardus did not receive anything of legal value relating to execution of the deed. Accordingly, 233rd Street Partnership argues, the May 1872 deed fails for lack of consideration. Case: 25-1849 Document: 42 Page: 10 Filed: 10/20/2026 10 233RD STREET PARTNERSHIP, L.P. v. US 233rd Street Partnership did not make that argument in response to the government’s summary judgment mo- tion before the Court of Federal Claims. See J.A. 470–93. The Court of Federal Claims even noted that “[n]o party disputes this deed is lawful.” 233rd St. P’ship, 176 Fed. Cl. at 699. 233rd Street Partnership has thus forfeited making that argument to this court. See Gant v. United States, 417 F.3d 1328, 1332 (Fed. Cir. 2005) (“Arguments not made in the court or tribunal whose order is under review are nor- mally considered waived.”). Even if we were to consider this argument, it lacks merit. At most, the later agreement was merely a clarifi- cation of the parties’ intent as to what property interest was to be conveyed, similar to the revised terms of the road and dock work in Silver Beach. Because the clarification in this case established that the parties’ intent was to con- vey a fee simple interest in the property, no additional con- sideration was necessary to make the deed valid. III For the foregoing reasons, we conclude that the Court of Federal Claims correctly held that 233rd Street Partner- ship has no interest in the property at issue, and its taking claim fails as a matter of law. AFFIRMED