§ 28 — Tunnel railroads

§ 28. Tunnel railroads. When, according to the route and plan for the\nbuilding of its road, adopted by any railroad corporation, including\ncorporations organized under chapter one hundred and forty of the laws\nof eighteen hundred and fifty, and the acts amendatory thereof, and\nsupplementary thereto, it shall be necessary or proper to build it or\nany part of it underground, or to tunnel or bridge any river or waters,\nsuch corporation may enter upon, acquire title to and use such lands\nunder water and uplands, except on or along any canals of the state, as\nshall be necessary for the purpose herein mentioned, and may construct,\nerect and secure the necessary foundations and other structures which\nmay be required for operating and maintaining such road, or connecting\nthe same with another, and to acquire, in the manner provided by law,\nsuch land or rights or easements in lands along its route, upon, over or\nbeneath the surface thereof as may be necessary for the construction of\nits road and making such connections. Where such road runs underneath\nthe ground, at such depth as to enable the corporation to tunnel the\nsame, such tunnel shall be so built and at all times kept in such\ncondition as to make the surface of the ground above the same and in the\nneighborhood thereof firm and safe for buildings and other erections\nthereon, and if surface excavations are made the surface shall be\nrestored to its former condition as soon as can be done, except so far\nas may be actually required for ventilation of the tunnel beneath the\nsame or access thereto. Such road or any part of it may be built within\nthe limits of any city or incorporated village of this state, and run by\nmeans of a tunnel underneath any of the streets, roads or public places\nthereof, provided such corporation shall, before constructing the same\nunderneath any such street, road or public place, have obtained the\nconsent of the owners of one-half in value of the property bounded on\nthe line of such street, road or public place, and the consent of the\nboard of trustees of the village, by a resolution adopted at a regular\nmeeting and entered on the records of the board, or of the proper\nauthorities of the city having control of such streets, roads or public\nplaces. If the consent of such property owners can not be obtained, the\nappellate division of the supreme court in the department in which said\ncity or village or any part thereof is situated, may upon application\nappoint three commissioners, who shall determine, after a hearing of all\nparties interested, whether such railroad ought to be built underneath\nsuch streets, roads or public places, or any of them, and in what manner\nthe same may be so built with the least damage to the surface and to the\nuse of the surface by the public and the determination of the\ncommissioners confirmed by the court may be taken in lieu of the consent\nof the property owners. All railroad corporations constructing their\nroad under this section shall be subject to all the provisions of this\nchapter applicable thereto. Any other railroad corporation may connect\nits road therewith, at such points or places as it may elect, and where\nsuch connections shall be made by connecting roads, the railroad\ncorporations owning such roads shall build, at their joint expense, and\nfor their joint use, such passenger and freight depots, and other\naccommodations for handling passengers and freight, as may be required\nfor the convenience of the public. All railroad corporations\nconstructing any tunnel under the provisions of this section shall be\nliable to any person or corporation for all damages which may be\nsustained by reason of the construction of such tunnel. Whenever it\nshall be necessary in constructing any railroad authorized by this\nsection through any city or incorporated village, to alter the position\nor course of any sewer, or water or gas pipes, it shall be done at the\nexpense of the railroad corporation under the direction of the\ndepartment or corporation having charge thereof, so as not to interfere\nwith such work. In all cases the use of streets, docks and lands beneath\nwhich such railroad is constructed, and on the route thereof and the\nright of way beneath the same, for the purpose of such railroad, shall\nbe considered, and is hereby declared, a public use, consistent with and\none of the uses for which streets and docks are publicly held. No\npublic park or square in any city or village of this state shall be used\nor occupied by any corporation for any of the purposes of this section,\nand every road constructed hereunder in or through any such street or\npublic place shall be wholly underground and constructed in a tunnel and\nnot otherwise. But nothing in this section shall operate to revive any\ncharter or franchise heretofore granted by or in the city of Brooklyn.\nThis section does not authorize the construction of any bridge over or\nacross the East or North rivers.\n