N.Y. Railroad Law § 28: Tunnel railroads

§ 28. Tunnel railroads. When, according to the route and plan for the

building of its road, adopted by any railroad corporation, including

corporations organized under chapter one hundred and forty of the laws

of eighteen hundred and fifty, and the acts amendatory thereof, and

supplementary thereto, it shall be necessary or proper to build it or

any part of it underground, or to tunnel or bridge any river or waters,

such corporation may enter upon, acquire title to and use such lands

under water and uplands, except on or along any canals of the state, as

shall be necessary for the purpose herein mentioned, and may construct,

erect and secure the necessary foundations and other structures which

may be required for operating and maintaining such road, or connecting

the same with another, and to acquire, in the manner provided by law,

such land or rights or easements in lands along its route, upon, over or

beneath the surface thereof as may be necessary for the construction of

its road and making such connections. Where such road runs underneath

the ground, at such depth as to enable the corporation to tunnel the

same, such tunnel shall be so built and at all times kept in such

condition as to make the surface of the ground above the same and in the

neighborhood thereof firm and safe for buildings and other erections

thereon, and if surface excavations are made the surface shall be

restored to its former condition as soon as can be done, except so far

as may be actually required for ventilation of the tunnel beneath the

same or access thereto. Such road or any part of it may be built within

the limits of any city or incorporated village of this state, and run by

means of a tunnel underneath any of the streets, roads or public places

thereof, provided such corporation shall, before constructing the same

underneath any such street, road or public place, have obtained the

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

the line of such street, road or public place, and the consent of the

board of trustees of the village, by a resolution adopted at a regular

meeting and entered on the records of the board, or of the proper

authorities of the city having control of such streets, roads or public

places. If the consent of such property owners can not be obtained, the

appellate division of the supreme court in the department in which said

city or village or any part thereof is situated, may upon application

appoint three commissioners, who shall determine, after a hearing of all

parties interested, whether such railroad ought to be built underneath

such streets, roads or public places, or any of them, and in what manner

the same may be so built with the least damage to the surface and to the

use of the surface by the public and the determination of the

commissioners confirmed by the court may be taken in lieu of the consent

of the property owners. All railroad corporations constructing their

road under this section shall be subject to all the provisions of this

chapter applicable thereto. Any other railroad corporation may connect

its road therewith, at such points or places as it may elect, and where

such connections shall be made by connecting roads, the railroad

corporations owning such roads shall build, at their joint expense, and

for their joint use, such passenger and freight depots, and other

accommodations for handling passengers and freight, as may be required

for the convenience of the public. All railroad corporations

constructing any tunnel under the provisions of this section shall be

liable to any person or corporation for all damages which may be

sustained by reason of the construction of such tunnel. Whenever it

shall be necessary in constructing any railroad authorized by this

section through any city or incorporated village, to alter the position

or course of any sewer, or water or gas pipes, it shall be done at the

expense of the railroad corporation under the direction of the

department or corporation having charge thereof, so as not to interfere

with such work. In all cases the use of streets, docks and lands beneath

which such railroad is constructed, and on the route thereof and the

right of way beneath the same, for the purpose of such railroad, shall

be considered, and is hereby declared, a public use, consistent with and

one of the uses for which streets and docks are publicly held. No

public park or square in any city or village of this state shall be used

or occupied by any corporation for any of the purposes of this section,

and every road constructed hereunder in or through any such street or

public place shall be wholly underground and constructed in a tunnel and

not otherwise. But nothing in this section shall operate to revive any

charter or franchise heretofore granted by or in the city of Brooklyn.

This section does not authorize the construction of any bridge over or

across the East or North rivers.