N.Y. Rapid Transit Law § 50: Acquisition of property

§ 50. Acquisition of property. a. For the purpose of constructing or

operating any road for the construction or operation of which a contract

shall have been made by the board of transportation or any of its

predecessors, or for the purpose of constructing or operating any part

of any railroad or portion thereof relocated under the provisions of

section eighty-two of this chapter, for the construction of which a

contract shall have been made pursuant to such section, including

necessary stations and station approaches, or for the purpose of

operating or securing the operation thereof free of interference and

right of interference and of action and right of action for damages and

otherwise, whether by abutting owners or others, or to provide, lay or

maintain sub-surface structures, such board for and in behalf of such

city may acquire, by conveyance or grant to such city to be delivered to

such board and to contain such terms, conditions, provisos and

limitations as such board shall deem proper, or by condemnation or other

legal or other proceedings, as provided in this chapter, any property

rights and any and all rights, privileges, franchises and easements,

including such of any thereof as may be already devoted to a public use,

whether of owners or abutters, or others to interfere with the

construction or operation of such road or to recover damages therefor,

which, in the opinion of the board, it shall be necessary to acquire or

extinguish for the purpose of constructing and operating such road free

of interference or right of interference. Any such city also may

exercise any of the rights to acquire such property rights upon the

validation of a route in the manner prescribed in sections twenty and

twenty-one of this chapter, provided that if any such right shall be so

exercised prior to the time a contract for construction or operation of

such route shall be entered into, the board of estimate and the mayor,

as a condition precedent, shall approve such acquisition. An option

granted to the board of transportation or to the city to purchase any

property rights or an award in a condemnation proceeding for a period

not to exceed ninety days in case of purchase of property rights, and

for a period not to exceed six months in case of purchase of such an

award shall not be withdrawn or cancelled during the period therein

named. Upon the trial of a condemnation proceeding on behalf of the

board of transportation under the provisions of this chapter, no

evidence shall be admitted, as against an owner of an offer made by or

on behalf of such owner for the sale of his real estate or any part

thereof to such board for or on behalf of such city, or for the sale or

assignment of any right and title to an award, or any part thereof, to

be made for such real estate, or any part thereof, in the proceeding;

nor shall any evidence be received, as against such city, of any offer

made to such owner by the board for or on behalf of the city for the

purchase of such real estate, or any part thereof, or for the purchase

of any award or any part thereof, to be made for such real estate, or

any part thereof, in the proceeding.

b. Where any contractor for the construction or operation of such

railroad shall require any property for such construction and operation,

such property shall be deemed to be required for a public purpose; and

with the approval of the board of transportation such property may be

acquired by such contractor in all respects as such property may be

acquired by such board for the city. All proceedings to acquire such

property shall be conducted under the direction and subject to the

approval of such board. It shall be the duty of the board whenever any

property which the city shall have acquired as provided in this chapter

shall be unnecessary for rapid transit purposes, to surrender the same

for other public use or purpose of the city or to sell and convey the

same in behalf of the city, provided, however, that no such sale or

conveyance shall be made except with the approval of the board of

estimate, and provided further that the proceeds of any such sale or

conveyance, together with all rent received for the use, occupation or

lease of any property acquired as provided in this chapter, shall, under

the direction of the board of transportation, be applied either to the

acquisition of other property necessary for rapid transit purposes or,

in the case of rent so far as necessary, to the maintenance of property

acquired for rapid transit purposes or shall be applied in all respects

as the payments of rental to be made by the contractor as provided in

this chapter. Whenever the city shall have acquired any property rights

as provided in this chapter and shall have thereafter acquired such

property in fee, such property rights shall be deemed to be merged in

such fee estate. Whenever any property rights which the city shall have

acquired as provided in this chapter in or to any property shall be

unnecessary for rapid transit purposes, the board of transportation may

sell and release the same in behalf of the city to the owner of such

property, provided, however, that no such sale or release shall be made

except with the approval of the board of estimate. Whenever any property

shall be sold as provided in this chapter, the grant or conveyance may

contain such terms, conditions, provisos and limitations as the board of

transportation may deem proper, and such board, in and by such grant or

conveyance may make such covenants and give such warranty in behalf of

the city as such board may deem proper, including covenants as to the

size, weight or character of building which any such rapid transit

railroad for which an easement in such property is reserved will

support. In the case of any such sale or conveyance such board also may

accept in part payment for the property sold a bond or other obligation

to the city secured by purchase money mortgage on such property, such

bond or other obligation and such mortgage to contain such terms and

conditions as such board may deem proper, including in the discretion of

the board provision for the payment of the amount of such bond or other

obligation in installments.

c. The board of estimate with the approval of the mayor, upon the

requirement of the board of transportation, may establish the grade of

any street or change the grade of any street for the purpose of

constructing or operating a rapid transit railroad or its appurtenances.

There shall be no liability to abutting owners for changing for such

rapid transit purposes a grade once established by lawful authority,

except where the owner of the abutting property has built upon or

otherwise improved the property in conformity with such established

grade, and such grade is changed after such building or improvements

have been made. In such cases damages occasioned by such change of grade

to such buildings and improvements shall be ascertained as provided in

this chapter. A grade shall be deemed established by lawful authority

within the meaning of this subdivision where it was originally adopted

by the action of the public authorities, or where the street or avenue

has been used by the public as of right for ten years and been improved

by the public authority at the expense of the public or of the abutting

owners. In case the grade of any such street shall be changed for the

purpose of constructing and operating a rapid transit railroad or its

appurtenances and graded according to the new grade, the board of

transportation shall transmit to the board of assessors a certificate

stating that the grade of the street has been changed for the purpose of

constructing and operating a railroad or its appurtenances, and

accompany such certificate with a plan indicating the original grade,

the changed grade and the buildings or other improvements affected

thereby. It shall be the duty of the board of assessors to cause to be

published at the expense of the board of transportation in the City

Record, or other official publication of the city, daily for two weeks,

and in two daily newspapers published in the city, twice in each week

for two weeks, immediately prior to such hearing, a notice which shall

contain a request for all persons claiming to have been injured by such

change of grade, to present, in writing to the secretary of the board of

assessors, their claims. Such notice shall specify a place where, and a

time when the board of assessors will receive evidence and testimony of

the nature and extent of such injury. After hearing and considering such

testimony and evidence, the board of assessors shall make such awards

for such loss and damage, if any, as it may deem proper. The proceedings

and determination of the board of assessors shall be subject to review

by the board of revision of assessments of the city, as in the case of

other awards of damages for change of grade of streets in such city. The

city shall, within four months after the making of any such award, pay

to the respective parties entitled thereto the amount of such award, and

in case of its neglect or failure to pay the same at the expiration of

such period, and after demand, it shall be lawful for the persons

entitled to the same to sue for and recover the amount of their awards.

In case any such award or compensation shall be paid to any person not

entitled thereto, when the same ought to have been paid to some other

person, it shall be lawful for the person to whom the same ought to have

been paid to sue for and recover the same with interest and costs, as so

much money had and received to his use by the person to whom the same

shall have been so paid; provided that when the name of the owner or

party is not set forth in the report of the assessors, or where such

owner, party or person being named therein shall be under legal

disability or absent from the city, or after diligent search cannot be

found, or his title to receive such award is disputed, it shall be

lawful for the city to pay the sum mentioned in such report, or that

would be coming to such owner, party or person, to the comptroller to be

secured, disposed of and invested as the supreme court shall direct, and

such payment shall be as valid and effectual in all respects as if made

to such owner, party or person, himself, according to his just rights,

if he had been known and had not been under legal disability.

d. Whenever the board of transportation for and in behalf of the city

shall have acquired or shall hereafter acquire an easement in property

by conveyance or grant for the purpose of the operation or construction

of a railroad, such board in behalf of the city and as part

consideration for the grant or conveyance of the easement, may enter

into an agreement with the grantor of such easement or right of way,

giving to such grantor or his assigns, the right of lateral or other

support through, in or under such property, or any adjoining lands or

space occupied by such railroad for any building erected or to be

erected upon the land over which the easement or right of way has been

obtained for the support and maintenance of any such building, provided

that any structure that shall be built for the support of any such

building shall be approved by such board and shall not extend in or

under any street beyond the curb lines as fixed by the appropriate

authority of such city.

e. The board of transportation temporarily may let or allow the use

and occupation of any property acquired as provided in this chapter, and

receive rent therefor between the time of the acquisition thereof and

the time when it shall be required for construction or operation of such

road, or shall be sold as aforesaid, and in case of default of any

tenant may prosecute any action or proceeding to recover possession of

the premises so let or used and occupied. The board of transportation,

with the approval of the board of estimate, also may lease any property

acquired as provided in this chapter for the highest marketable rental

at public auction or by sealed bids, and always after public

advertisement for a period of at least fifteen days in the City Record,

for such term not exceeding twenty-one years and upon such conditions as

the board of transportation may deem proper, and, in the discretion of

such board, may provide in such lease for one renewal of not more than

twenty-one years. All rent received for the use, occupation or lease of

any such property shall be paid to the comptroller and shall be applied

in like manner as the proceeds of sales of property acquired hereunder

are directed to be applied in subdivision b of this section.

f. Whenever any property owned by the city and in use by any

department of the city including property acquired for park purposes

shall be deemed available by the board of transportation for the purpose

of operation or construction of a railroad and wherever any property

acquired for and on behalf of the city by such board or any of its

predecessors shall be deemed available by the head of any department of

the city for the use of such department, the board of estimate,

notwithstanding any provision of law, may authorize an exchange of such

properties at a valuation and upon such terms as may be agreed upon by

the board of transportation and the board of estimate. Whenever any

property of the city shall have been turned over by any department of

the city to the board of estimate to be disposed of according to law,

such property or any portion thereof, upon the application of the board

of transportation, may be turned over to the board of transportation at

a valuation and upon such terms as may be agreed upon by such board and

the board of estimate. Notwithstanding any provision of law, such

property shall be used for the purpose of operation or construction of a

railroad or any other purpose of the board of transportation under this

chapter. The board of estimate may accept in payment or in part payment

therefor property previously acquired by the board of transportation for

and on behalf of the city which is no longer required for the purpose of

operation or construction of a railroad or other purpose of such board

under this chapter, but which in the judgment of the board of estimate

may be used by the city or one or more of its departments.

g. The existence of an easement acquired for and in behalf of a city

under this chapter shall not be deemed an incumbrance, under any law

relating to investments in mortgages upon real property by corporations,

trustees, executors, administrators, guardians or other persons holding

trust funds, but the effect of such an easement upon the real property

which it affects shall be taken into consideration in determining the

value thereof.