N.Y. Railroad Law § 236: Abandonment or change of route; new commissioners; their powers and proceedings

§ 236. Abandonment or change of route; new commissioners; their powers

and proceedings. Any corporation heretofore organized or hereafter to be

organized under this article, its successor or assigns, which shall have

constructed or put in operation a railroad upon a part and not upon the

whole of the route fixed, determined and located for such railroad by a

board of commissioners, may at any time apply for authority to abandon

any portion of the route upon which the railroad shall not have been

theretofore constructed or shall not then be in operation, with or

without a change and relocation of such portion, and with or without

extension of the portion not abandoned, or of any part thereof. Such

application shall be made by petition in writing, addressed by such

corporation to the board of supervisors of the county in which such

portion of the route so desired to be changed or abandoned shall be

situated, which is not within the limits of any city, or if such route,

or any part thereof, shall be within the limits of a city, to the mayor

of the city, for the route or portion thereof within such city. Five

commissioners may be appointed pursuant to such an application as

hereinafter provided, who shall be residents of the county or city and

who shall have full power as herein provided. When such application is

made by a corporation heretofore organized such commissioners may be

appointed within thirty days after presentation of the same by such

board of supervisors, or, as the case may be, by such mayor. When such

application is made by a corporation hereafter to be organized under

this article, such board of supervisors, or, as the case may be, such

mayor, may within thirty days after presentation of such application,

indorse thereon their or his approval and direction that it may be

presented to the supreme court in the manner provided in section two

hundred and twenty of this article, and such court may thereupon appoint

such commissioners. Within ten days after his appointment each

commissioner so appointed shall take, subscribe and file the oath and

give and file the bond prescribed by section two hundred and twenty-one

of this article; and if any one so appointed shall not comply with this

requirement, he shall be deemed to have declined to accept such

appointment, and to have made a vacancy which the appointing power shall

fill by another appointment as herein provided. Within fifteen days

after such appointments shall have been so made, the commissioners shall

meet at some convenient place in such county and complete their

organization as a board with appropriate officers. Such board shall have

all the authority conferred by law upon commissioners appointed, or

authorized to be appointed under this article. Before proceeding to hear

the application of the corporation, the board shall give such public

notice as it may deem most proper and effective of the time and place of

the hearing. Within thirty days after completing their organization such

board shall hear the application of the corporation, and all parties who

may be interested therein, and within sixty days after their

organization they shall determine whether any part of such route should

be authorized to be abandoned, or should be changed and relocated with

or without extension or extensions. If the board shall determine that no

abandonment of any part of the route should be allowed, and that no

change and relocation of any part thereof should be effected, and that

no extension should be made, the board shall dismiss the application.

If the board shall determine that an abandonment of any portion of the

route should be allowed, or that any change therein or extension thereof

should be made, the board shall proceed to authorize and require the

same upon such conditions as to the board shall seem proper, and with or

without extension of the remainder of the route or of any part thereof,

by fixing, determining and locating the route or routes of the extension

or extensions, if any, and by directing the abandonment of the part of

the route theretofore located, but by the board allowed to be abandoned,

if any, and by fixing, determining and relocating the part of the route

theretofore located, but by the board changed, if any; and the board

shall cause to be made in duplicate a survey and map of the route as so

changed and fixed, determined and located. Neither such corporation nor

any assign or successor thereof shall thereafter have any authority, by

reason of anything done under this article, to operate or construct any

railroad upon any portion of the route by the board so required to be

abandoned. The board shall also fix and determine the time within which

the railroad by it authorized and required upon any portion of the route

so changed, shall be reconstructed and ready for operation. If the

railroad on any portion of the route not by the board changed or allowed

to be abandoned, shall not have been theretofore constructed and made

ready for operation, the board may extend, and fix and determine anew

the time within which such railroad shall be completed, but such

extension of time shall not be for a longer period than that originally

allowed by law for the completion thereof. If the board shall have

determined that any portion of the route theretofore located should be

allowed to be abandoned, with or without a change or relocation thereof

or any part thereof, and with or without extension, or if the board

shall have extended the time within which such railroad shall be

completed, the board shall make a report in writing in accordance with

the determination so made, describing the portion of the route, if any

there be, as so fixed, determined and located anew, and the part, if any

there be, of the route allowed to be abandoned, and stating the period

of time, if any, by the board fixed and determined within which such

corporation shall construct and complete the railroad theretofore

authorized or by it authorized to be constructed, and prescribing that a

failure by the corporation, its successors or assigns, to complete it

within the time, if any, so limited, shall work a forfeiture to the

supervisors of the county if no part of the road is within a city, or in

any city, to such city, of the rights and franchises of such corporation

with respect to that portion of the route so fixed, determined and

located anew, and with respect to the then authorized extension or

extensions, if any there be of said route, upon which a railroad shall

not be constructed within the time so limited; but the time, if any,

unavoidably consumed by the pendency of legal proceedings, shall not be

deemed a part of any period of time limited in this article, and any

recital of any forfeiture of any of the rights or franchises prescribed

by any commissioners heretofore appointed, to be to the mayor, aldermen

and commonalty of the city of New York, shall be as effectual for any

and all purposes as if such forfeiture had been in terms recited to be

to the board of supervisors of the county of New York. Such report shall

be signed in duplicate by at least a majority of the then members of the

board, and there shall be thereto annexed the survey and map as

hereinbefore directed, showing the line and location of each and all the

routes, with or without the extension or extensions, as fixed,

determined and located, and showing also the parts or part, if any there

shall be, of the route or routes as theretofore fixed, determined and

located, but by the board allowed to be abandoned. Within ten days

after so signing such report the board shall cause the same to be filed

in the office of the secretary of state, and the duplicate thereof in

the office of the clerk of the county wherein such railroad shall be

located; and thereupon the corporation making such application, its

successors or assigns, is and shall be authorized to construct, maintain

and operate a steam railroad for the transportation of passengers, mail

and freight, upon the route or routes so fixed, determined and located,

and in said report described, but the construction or operation of a

railroad upon any new location or selection of route is not and shall

not be thus authorized except upon the condition that the consent of the

owners of one-half in value of the property bounded on, and the consent

also of the local authorities having control of that portion of a street

or highway upon which it is proposed to construct or operate such

railroad be first obtained, or in case the consent of such property

owners cannot be obtained, that the determination of three

commissioners, to be upon application appointed by the appellate

division of the supreme court in the department in which such railroad

is proposed to be constructed, be given after a hearing of all parties

interested that such railroad ought to be constructed or operated, which

determination, confirmed by the court, may be taken in lieu of the

consent of the property owners. Such corporation is and the successors

and assigns thereof shall be authorized to maintain and operate all the

railroads and the appurtenances thereof by it or them theretofore

constructed upon any portion of a route or routes which shall have been

located by commissioners under this article, and to complete within the

time in and by such report so extended, fixed and determined anew, and

thereafter to maintain and operate, the railroad and the appurtenances,

upon so much of the route or routes theretofore fixed, determined and

located as shall not have been so authorized and required to be

abandoned, and with the same rights and effect, in all respects, as if

such extended period of time had been originally fixed and determined,

and in the original certificate of incorporation of such corporation

recited, for completing such railroad and putting it in operation. The

other terms and conditions in and by such certificate mentioned and

prescribed, except as the same are hereinbefore modified or may be

modified by the board as hereinbefore authorized, shall apply to the

railroad herein authorized to be constructed and operated upon the route

or routes as so changed, fixed, determined and located, with the same

force and effect as if such route or routes, as finally so changed and

located, had been in and by such articles or certificates themselves

prescribed. If a new location or extension of routes shall be fixed and

determined by commissioners who shall have been appointed by the court

pursuant to this section, they shall also ascertain and determine the

aggregate pecuniary damages arising from the diminution of value of the

property bounded on that portion of the street or highway upon the line

of such new location or extension and of each parcel of real property so

bounded, and their proceedings thereupon shall be conducted in the same

manner and upon the like notice as the proceedings for that purpose

before the commissioners specified in section two hundred and

twenty-five and they shall make to the supreme court the report required

by section two hundred and thirty-three, and thereupon the same

proceedings shall be had as are provided for in such last named section.

Each commissioner shall be paid for his services at the rate of ten

dollars per day for each day of actual services as such commissioner,

and all reasonable expenses incurred by him in or about any of the

matters referred to such board, to be paid by the corporation making the

application so heard and determined. No corporation shall be authorized

under this section to extend, abandon or change the location of its

route, or any part thereof, where the greater portion of the route or

routes is or shall be in that portion of the city of New York south or

west of Harlem river, or of any route or part thereof in the borough of

Brooklyn or county of Kings, or to construct, extend, abandon or change

the location of any railroad or route for a railroad over, under,

through or across any street, avenues, place or lands south of One

Hundred and Twenty-eighth street or west of Third avenue in that portion

of the city of New York south or west of Harlem river, or where a

railroad might not by law be constructed, or was not by law authorized

to be by a board of commissioners located on the fifth day of June,

eighteen hundred and eighty-eight.