§ 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award shall not be withdrawn or cancelled during the period therein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.