2013 New York Consolidated Laws
RRD - Railroad
Article 6 - (220 - 244) RAPID TRANSIT ACT OF 1875
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.