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of property rights, and for a period not to exceed six months in case of purchase of such an award shall not be withdrawn or cancelled during the period therein named.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 orconveyance 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 CityRecord, 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 rentalat 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.