§ 15-1729 — Eminent domain

§ 15-1729. Eminent domain.\n Real property may be acquired pursuant to title 17 of this article\nunder an exercise of the right of eminent domain in the following cases:\n 1. Real property which is necessary to the full development and\nutilization of any water power site of which the state is the owner, in\nwhole or in part.\n 2. Real property which is necessary to the full development of water\npower sites where such water power sites on a stream, or in a given\nlocality cannot be developed separately as efficiently and economically\nfor the generation of power as under a plan for their development\ntogether and the owner or owners of the right to the use of the greater\npart of the head and volume of usable flow for power at such sites\ntransfer the same to a corporation organized for the production, sale\nand distribution of heat, light and power to the public as herein\nprovided, or such right is owned by such a corporation and the\ndepartment determines by resolution that such power sites can be more\nefficiently and economically developed for the production of power under\nsuch a plan than singly, and the heat, light or power is necessary for\npublic use.\n 3. Real property, on the application of a corporation organized for\nthe production of heat, light or power, after a determination by the\nPublic Service Commission that such property is necessary to the full\ndevelopment and utilization of a single undeveloped water power site, a\nmajor part of the head and volume of the usable flow for power at which\nsite is owned by such corporation, for the production of heat, light or\npower for sale or distribution to the public and that such heat, light\nor power is necessary for public use. In any county containing a part of\nthe forest preserve as now constituted, for the purpose of establishing\nthe right to exercise the power of eminent domain under this subdivision\nthe ownership of wild or unoccupied land shall be presumed to be in an\napplicant showing a record title under which the applicant or his\ngrantors has claimed for a period of ten years and it appears that the\nstate and county taxes thereon have been paid by or on behalf of such\napplicant or his grantors for a period of five years before the\nproceeding in which the application is made was begun; ownership in\nother lands wherever located shall be presumed on showing record title\nin the applicant for a period of ten years and possession thereunder for\na like period.\n 4. Such right of eminent domain shall be exercised under the\nprovisions of the eminent domain procedure law subject to the following\nrestrictions and limitations:\n a. The acquisition of real property for the state shall be on the\napplication of the department, and payment therefor shall be made in the\nmanner provided for the payment of lands appropriated by the state in\nthe Adirondack and Catskill parks under section 3-0305 of this chapter.\n b. If a water power site be taken under subdivision 2 of this section,\nthe owner of any such power site shall have the option to receive and\nown such a proportion of the power resulting from the common development\nas the head and volume of the usable flow of the water at the site bears\nto the product of the total head and volume of the usable flow of the\nwaters of the common development, provided he pays a like proportion of\nthe cost of development, maintenance and operation, and consents that\nhis pro rata share of such power shall be pledged to secure such\npayment, and assents to such reasonable and equitable provisions and\nregulations in relation to the development and operation thereof for the\ncommon benefit and to payment therefor as the department shall\nprescribe. In case of the exercise of such option by the owner of a\ndeveloped water power site, such owner shall also be allowed the loss,\nif any, resulting to him from the excess in value, if any, of the water\npower owned by him before such common development over the water power\nright owned by him after such development, after deducting from the\nvalue of such power right his proportion of the cost of such\ndevelopment. Such difference in value shall be deemed a part of the\ndamages in the condemnation proceeding, and the payment thereof shall be\nsecured as directed by the court.\n c. Before any real property is taken under the provisions of\nsubdivision 2 of this section, the owner or owners of the right to the\nuse of the greater part of the head and volume of usable flow for power\nat the sites to be developed in common shall, unless such a corporation\nbe already organized and be the owner of such rights, organize a\ncorporation for the production, distribution and sale of heat, light and\npower to the public, and shall transfer to such corporation such sites.\nSuch corporation shall file with the Public Service Commission a\ncertified copy of its certificate of incorporation and shall also file\nwith such department a map of the water power sites, and property\nconnected therewith, of which it is the owner, with satisfactory proof\nthat it is the owner thereof, and a map of the water power sites and\nproperty which it seeks to acquire for the purpose of making a common\ndevelopment. It shall also file with such department a plan of its\nproposed development of water power on the property which it owns and\nwhich it seeks to acquire. Such corporation shall file copies of such\nmaps and plan certified by the president and engineer of the\ncorporation, or a majority of the directors, in the office of the clerk\nof the county in which such development is to be made, or if it be in\nmore than one county, in the office of the clerk of each county; and\nshall give written notice to all actual occupants of lands of which it\nis not the owner on which such development is to be made, of the time\nand place such maps and plan were filed, and that such development is to\nbe made on the lands of such occupants. The Public Service Commission\nshall give an opportunity to persons interested to be heard, investigate\nand determine whether it is in the public interest that such development\nbe made and whether the power to be produced is necessary for the supply\nof the public with heat, light or power. If it shall so determine, it\nmay issue to such corporation a certificate that public convenience and\nnecessity require that such development be made, but in granting the\ncertificate the department may expressly except from its certificate any\npart of the property proposed to be developed as unnecessary to the\nplan. Such certificate when issued shall be conclusive evidence as to\nthe matters lawfully certified therein in any proceeding under the\nCondemnation Law to acquire the property, or any part thereof, set forth\nin such certificate.\n 5. Real property, on the application of a corporation authorized to do\nbusiness in this state and engaged in the production, sale and\ndistribution of heat, light or power to the public, which is necessary\nto perfect or improve water power already developed, provided that\nproperty taken does not impair or injure any developed water power or\ndeveloped water power site. The corporation may apply for and in a\nproper case receive from the Public Service Commission a certificate of\nconvenience and necessity for taking the property so to be acquired in\nthe manner and with like effect as provided in paragraph c of\nsubdivision 4 of this section. Any such corporation may also exercise\nthe right of eminent domain to acquire real property in accordance with\nthe provisions of subdivisions 2, 3 and 4 of this section.\n 6. If it appears that there is a defect of title or any outstanding\ninterest in any of the real property occupied or to be occupied by the\nproject when completed, the corporation making, or having the right to\nmake, the development of the water power may exercise the right of\neminent domain for the purpose of acquiring any such outstanding\ninterest or any real property with respect to which the title appears to\nbe or is defective.\n 7. In any county containing a part of the forest preserve as now\nconstituted, real property, on the application of a corporation\norganized for the production of heat, light or power, necessary for the\ndevelopment of a water power site or sites, developed or about to be\ndeveloped, and occupied by a railroad and real property necessary to and\nfor the relocation of such railroad, upon application to and on order of\nthe Public Service Commission authorizing the same and upon thirty days'\nnotice to the railroad corporation. The Public Service Commission shall\ngrant the order if in its judgment the public interest will be promoted\nthereby. The relocation of the railroad shall be at the expense of the\napplicant and in accordance with plans and specifications to be approved\nby such Public Service Commission. The applicant shall not take\npossession of any real property of the railroad necessary for its\noperation until such relocation of the railroad shall have been\ncompleted. The Public Service Commission upon the assent of the railroad\nmay order the abandonment of such part of the railroad as is necessary\nto be taken instead of ordering a relocation thereof.\n 8. Real property, on the application of a corporation organized for\nthe production of heat, light or power, which is necessary for the full\ndevelopment of a water power site or sites, developed or about to be\ndeveloped, and is used or occupied as burial place or cemetery, and real\nproperty necessary to locate and reinter any human remains removed\ntherefrom. Proceedings shall be had for the taking of such real property\nand removal of such remains in the manner provided by section 15-2117,\nin so far as the provisions thereof are applicable thereto, but such\nexercise of the right of eminent domain shall be subject to the sound\ndiscretion of the court.\n