§ 65-11-109 — Compliance with order to eliminate grade crossing

When any such grade crossing shall be ordered to be eliminated as provided, it shall be the duty of the railroad company owning or operating the track at such crossing to comply with the order of the commissioner of transportation or the commissioner's designee within the time specified in such order by preparing and submitting to the commissioner or the commissioner's designee for approval detailed plans and specifications and estimates of cost for the construction of such underpass or overpass and by the construction of the underpass or overpass in accordance with the plans and specifications so approved, including the necessary approaches thereto; provided, that: (1) Any such railroad company may request the commissioner of transportation or the commissioner's designee for an extension of time within which to begin and complete the actual construction of the underpass or overpass required by such order of the commissioner or the commissioner's designee. If the railroad company is dissatisfied with the commissioner's or the commissioner's designee's response to the request for an extension of time, such railroad company may file an appeal to the chancery court in the judicial district in which the grade crossing in question is located; provided that the appeal must be made within thirty (30) days of the date of the adverse response; (2) The detailed plans and specifications and estimates of cost for any such underpass or overpass ordered by the commissioner or the commissioner's designee may be prepared in the discretion of the commissioner or the commissioner's designee by the department of transportation's own engineers, or by engineers employed for the purpose, in which event such plans and specifications and estimates of cost shall be subject to the approval of the railroad company affected; (3) If any such railroad company shall, in obedience to the direction of the commissioner or the commissioner's designee make surveys and prepare estimates and plans, then the commissioner or the commissioner's designee shall within a reasonable time, not exceeding six (6) months, reimburse such railroad or railway for one-half (½) of the expense and cost of such work; and if, after the making and preparation of any such surveys, plans, and estimates of cost by any railroad company under the orders of the commissioner or the commissioner's designee, or any part thereof, the order for the elimination of the grade crossing be revoked by the commissioner or the commissioner's designee, and the elimination of such crossing abandoned, the commissioner or the commissioner's designee shall, within a reasonable time, not exceeding six (6) months from the date of the revocation, reimburse the railroad or railway company for all the actual expense and cost of such work incurred by the company, upon a presentation of an itemized and sworn statement of the expense and cost, the amount thereof to be included as a part of the cost of the highway of which such crossing is a part; (4) Before any railroad company shall be obligated or required to commence and prosecute the actual and physical work of separating any such grade crossing, the commissioner or the commissioner's designee shall have available sufficient funds with which to reimburse the railroad company for that part of the expenses of the separation which is to be paid out of the public funds under this chapter; and the commissioner or the commissioner's designee shall make to the railroad company, prosecuting such work, monthly payments in an amount which shall equal the proportion of the cost and expense which the public is required to pay under this chapter of all that part of the work, including both labor and materials, completed at the date of any monthly payment; and (5) When any grade crossing covered by §§ 65-11-107 and 65-11-108 shall have been ordered to be eliminated, as provided, it shall be the duty of the railroad company upon which such order of the state department of transportation may have been served, in accordance with this chapter, at once to comply with such order, or avail itself of the right of an appeal, as set forth in subdivision (1), within sixty (60) days from the date of the service of the order, and in the event any such railroad company should fail to comply with such order directing the elimination of such grade crossing, or to appeal within sixty (60) days, the commissioner or the commissioner's designee shall have the authority to proceed immediately with the construction of such grade crossing separation, and upon the completion of same to assess one-half (½) of the cost of preparation of plans and estimates and one-half (½) of the cost of the work of construction against the railroad company affected thereby, and all such costs as are assessed in this manner against such railroad company shall be a lien upon the physical properties of such railroad company, which lien shall be prior to any lien then existing against such physical properties, and the amount of such cost may be recovered against such railroad company by a suit brought on behalf of the state by the attorney general and reporter, and the enforcement, in the name of the state, of the lien.

Legislative History

Acts 1921, ch. 132, § 2; 1923, ch. 35, § 1; Shan. Supp., § 1582a4; mod. Code 1932, § 2640; impl. am. Acts 1955, ch. 69, § 1; impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1972, ch. 829, § 7; T.C.A. (orig. ed.), § 65-1109; Acts 1995, ch. 305, § 27.