§ 50 — Acquisition of property

§ 50. Acquisition of property. a. For the purpose of constructing or\noperating any road for the construction or operation of which a contract\nshall have been made by the board of transportation or any of its\npredecessors, or for the purpose of constructing or operating any part\nof any railroad or portion thereof relocated under the provisions of\nsection eighty-two of this chapter, for the construction of which a\ncontract shall have been made pursuant to such section, including\nnecessary stations and station approaches, or for the purpose of\noperating or securing the operation thereof free of interference and\nright of interference and of action and right of action for damages and\notherwise, whether by abutting owners or others, or to provide, lay or\nmaintain sub-surface structures, such board for and in behalf of such\ncity may acquire, by conveyance or grant to such city to be delivered to\nsuch board and to contain such terms, conditions, provisos and\nlimitations as such board shall deem proper, or by condemnation or other\nlegal or other proceedings, as provided in this chapter, any property\nrights and any and all rights, privileges, franchises and easements,\nincluding such of any thereof as may be already devoted to a public use,\nwhether of owners or abutters, or others to interfere with the\nconstruction or operation of such road or to recover damages therefor,\nwhich, in the opinion of the board, it shall be necessary to acquire or\nextinguish for the purpose of constructing and operating such road free\nof interference or right of interference. Any such city also may\nexercise any of the rights to acquire such property rights upon the\nvalidation of a route in the manner prescribed in sections twenty and\ntwenty-one of this chapter, provided that if any such right shall be so\nexercised prior to the time a contract for construction or operation of\nsuch route shall be entered into, the board of estimate and the mayor,\nas a condition precedent, shall approve such acquisition. An option\ngranted to the board of transportation or to the city to purchase any\nproperty rights or an award in a condemnation proceeding for a period\nnot to exceed ninety days in case of purchase of property rights, and\nfor a period not to exceed six months in case of purchase of such an\naward shall not be withdrawn or cancelled during the period therein\nnamed. Upon the trial of a condemnation proceeding on behalf of the\nboard of transportation under the provisions of this chapter, no\nevidence shall be admitted, as against an owner of an offer made by or\non behalf of such owner for the sale of his real estate or any part\nthereof to such board for or on behalf of such city, or for the sale or\nassignment of any right and title to an award, or any part thereof, to\nbe made for such real estate, or any part thereof, in the proceeding;\nnor shall any evidence be received, as against such city, of any offer\nmade to such owner by the board for or on behalf of the city for the\npurchase of such real estate, or any part thereof, or for the purchase\nof any award or any part thereof, to be made for such real estate, or\nany part thereof, in the proceeding.\n b. Where any contractor for the construction or operation of such\nrailroad shall require any property for such construction and operation,\nsuch property shall be deemed to be required for a public purpose; and\nwith the approval of the board of transportation such property may be\nacquired by such contractor in all respects as such property may be\nacquired by such board for the city. All proceedings to acquire such\nproperty shall be conducted under the direction and subject to the\napproval of such board. It shall be the duty of the board whenever any\nproperty which the city shall have acquired as provided in this chapter\nshall be unnecessary for rapid transit purposes, to surrender the same\nfor other public use or purpose of the city or to sell and convey the\nsame in behalf of the city, provided, however, that no such sale or\nconveyance shall be made except with the approval of the board of\nestimate, and provided further that the proceeds of any such sale or\nconveyance, together with all rent received for the use, occupation or\nlease of any property acquired as provided in this chapter, shall, under\nthe direction of the board of transportation, be applied either to the\nacquisition of other property necessary for rapid transit purposes or,\nin the case of rent so far as necessary, to the maintenance of property\nacquired for rapid transit purposes or shall be applied in all respects\nas the payments of rental to be made by the contractor as provided in\nthis chapter. Whenever the city shall have acquired any property rights\nas provided in this chapter and shall have thereafter acquired such\nproperty in fee, such property rights shall be deemed to be merged in\nsuch fee estate. Whenever any property rights which the city shall have\nacquired as provided in this chapter in or to any property shall be\nunnecessary for rapid transit purposes, the board of transportation may\nsell and release the same in behalf of the city to the owner of such\nproperty, provided, however, that no such sale or release shall be made\nexcept with the approval of the board of estimate. Whenever any property\nshall be sold as provided in this chapter, the grant or conveyance may\ncontain such terms, conditions, provisos and limitations as the board of\ntransportation may deem proper, and such board, in and by such grant or\nconveyance may make such covenants and give such warranty in behalf of\nthe city as such board may deem proper, including covenants as to the\nsize, weight or character of building which any such rapid transit\nrailroad for which an easement in such property is reserved will\nsupport. In the case of any such sale or conveyance such board also may\naccept in part payment for the property sold a bond or other obligation\nto the city secured by purchase money mortgage on such property, such\nbond or other obligation and such mortgage to contain such terms and\nconditions as such board may deem proper, including in the discretion of\nthe board provision for the payment of the amount of such bond or other\nobligation in installments.\n c. The board of estimate with the approval of the mayor, upon the\nrequirement of the board of transportation, may establish the grade of\nany street or change the grade of any street for the purpose of\nconstructing or operating a rapid transit railroad or its appurtenances.\nThere shall be no liability to abutting owners for changing for such\nrapid transit purposes a grade once established by lawful authority,\nexcept where the owner of the abutting property has built upon or\notherwise improved the property in conformity with such established\ngrade, and such grade is changed after such building or improvements\nhave been made. In such cases damages occasioned by such change of grade\nto such buildings and improvements shall be ascertained as provided in\nthis chapter. A grade shall be deemed established by lawful authority\nwithin the meaning of this subdivision where it was originally adopted\nby the action of the public authorities, or where the street or avenue\nhas been used by the public as of right for ten years and been improved\nby the public authority at the expense of the public or of the abutting\nowners. In case the grade of any such street shall be changed for the\npurpose of constructing and operating a rapid transit railroad or its\nappurtenances and graded according to the new grade, the board of\ntransportation shall transmit to the board of assessors a certificate\nstating that the grade of the street has been changed for the purpose of\nconstructing and operating a railroad or its appurtenances, and\naccompany such certificate with a plan indicating the original grade,\nthe changed grade and the buildings or other improvements affected\nthereby. It shall be the duty of the board of assessors to cause to be\npublished at the expense of the board of transportation in the City\nRecord, or other official publication of the city, daily for two weeks,\nand in two daily newspapers published in the city, twice in each week\nfor two weeks, immediately prior to such hearing, a notice which shall\ncontain a request for all persons claiming to have been injured by such\nchange of grade, to present, in writing to the secretary of the board of\nassessors, their claims. Such notice shall specify a place where, and a\ntime when the board of assessors will receive evidence and testimony of\nthe nature and extent of such injury. After hearing and considering such\ntestimony and evidence, the board of assessors shall make such awards\nfor such loss and damage, if any, as it may deem proper. The proceedings\nand determination of the board of assessors shall be subject to review\nby the board of revision of assessments of the city, as in the case of\nother awards of damages for change of grade of streets in such city. The\ncity shall, within four months after the making of any such award, pay\nto the respective parties entitled thereto the amount of such award, and\nin case of its neglect or failure to pay the same at the expiration of\nsuch period, and after demand, it shall be lawful for the persons\nentitled to the same to sue for and recover the amount of their awards.\nIn case any such award or compensation shall be paid to any person not\nentitled thereto, when the same ought to have been paid to some other\nperson, it shall be lawful for the person to whom the same ought to have\nbeen paid to sue for and recover the same with interest and costs, as so\nmuch money had and received to his use by the person to whom the same\nshall have been so paid; provided that when the name of the owner or\nparty is not set forth in the report of the assessors, or where such\nowner, party or person being named therein shall be under legal\ndisability or absent from the city, or after diligent search cannot be\nfound, or his title to receive such award is disputed, it shall be\nlawful for the city to pay the sum mentioned in such report, or that\nwould be coming to such owner, party or person, to the comptroller to be\nsecured, disposed of and invested as the supreme court shall direct, and\nsuch payment shall be as valid and effectual in all respects as if made\nto such owner, party or person, himself, according to his just rights,\nif he had been known and had not been under legal disability.\n d. Whenever the board of transportation for and in behalf of the city\nshall have acquired or shall hereafter acquire an easement in property\nby conveyance or grant for the purpose of the operation or construction\nof a railroad, such board in behalf of the city and as part\nconsideration for the grant or conveyance of the easement, may enter\ninto an agreement with the grantor of such easement or right of way,\ngiving to such grantor or his assigns, the right of lateral or other\nsupport through, in or under such property, or any adjoining lands or\nspace occupied by such railroad for any building erected or to be\nerected upon the land over which the easement or right of way has been\nobtained for the support and maintenance of any such building, provided\nthat any structure that shall be built for the support of any such\nbuilding shall be approved by such board and shall not extend in or\nunder any street beyond the curb lines as fixed by the appropriate\nauthority of such city.\n e. The board of transportation temporarily may let or allow the use\nand occupation of any property acquired as provided in this chapter, and\nreceive rent therefor between the time of the acquisition thereof and\nthe time when it shall be required for construction or operation of such\nroad, or shall be sold as aforesaid, and in case of default of any\ntenant may prosecute any action or proceeding to recover possession of\nthe premises so let or used and occupied. The board of transportation,\nwith the approval of the board of estimate, also may lease any property\nacquired as provided in this chapter for the highest marketable rental\nat public auction or by sealed bids, and always after public\nadvertisement for a period of at least fifteen days in the City Record,\nfor such term not exceeding twenty-one years and upon such conditions as\nthe board of transportation may deem proper, and, in the discretion of\nsuch board, may provide in such lease for one renewal of not more than\ntwenty-one years. All rent received for the use, occupation or lease of\nany such property shall be paid to the comptroller and shall be applied\nin like manner as the proceeds of sales of property acquired hereunder\nare directed to be applied in subdivision b of this section.\n f. Whenever any property owned by the city and in use by any\ndepartment of the city including property acquired for park purposes\nshall be deemed available by the board of transportation for the purpose\nof operation or construction of a railroad and wherever any property\nacquired for and on behalf of the city by such board or any of its\npredecessors shall be deemed available by the head of any department of\nthe city for the use of such department, the board of estimate,\nnotwithstanding any provision of law, may authorize an exchange of such\nproperties at a valuation and upon such terms as may be agreed upon by\nthe board of transportation and the board of estimate. Whenever any\nproperty of the city shall have been turned over by any department of\nthe city to the board of estimate to be disposed of according to law,\nsuch property or any portion thereof, upon the application of the board\nof transportation, may be turned over to the board of transportation at\na valuation and upon such terms as may be agreed upon by such board and\nthe board of estimate. Notwithstanding any provision of law, such\nproperty shall be used for the purpose of operation or construction of a\nrailroad or any other purpose of the board of transportation under this\nchapter. The board of estimate may accept in payment or in part payment\ntherefor property previously acquired by the board of transportation for\nand on behalf of the city which is no longer required for the purpose of\noperation or construction of a railroad or other purpose of such board\nunder this chapter, but which in the judgment of the board of estimate\nmay be used by the city or one or more of its departments.\n g. The existence of an easement acquired for and in behalf of a city\nunder this chapter shall not be deemed an incumbrance, under any law\nrelating to investments in mortgages upon real property by corporations,\ntrustees, executors, administrators, guardians or other persons holding\ntrust funds, but the effect of such an easement upon the real property\nwhich it affects shall be taken into consideration in determining the\nvalue thereof.\n