§ 174. Proceedings if property owners do not consent. If the consent
of property owners required by any provision of this article can not be
obtained, the corporation failing to obtain such consents may apply to
the appellate division of the supreme court held in the department in
which it is proposed to construct its road for the appointment of three
commissioners to determine whether such railroad ought to be constructed
and operated. Notice of such application must, at least ten days prior
thereto, be served, personally, upon each nonconsenting property owner
by delivering the same to the person to whom such property is assessed
upon such assessment-roll or by duly mailing the same, properly folded
and directed, to such property owner at his post-office address with the
postage prepaid thereon. If the person upon whom service is to be made
is unknown, or his residence and post-office address are unknown and can
not by reasonable diligence be ascertained, service of such notice may
be made by publishing the same in such newspaper of the county as the
court may direct, at least once a week for two successive weeks. Upon
due proof of service of such notice the court to which the application
is made shall appoint three disinterested persons, who shall act as
commissioners, and who shall, within ten days after their appointment,
cause public notice to be given of their first meeting in the manner
directed by the court, and may adjourn from time to time, until all
their business is completed. Vacancies may be filled by the court after
such notice to parties interested as it may deem proper to be given; and
the evidence taken before as well as after the happening of the vacancy
shall be deemed to be properly before such commissioners. After a public
hearing of all parties interested, the commissioners shall determine
whether such railroad ought to be constructed and operated, and shall
make a report thereon, together with the evidence taken, to the
appellate division, within sixty days after appointment, unless the
court, or a judge thereof, for good cause shown, shall extend such time;
and their determination that such road ought to be constructed and
operated, confirmed by such court, shall be taken in lieu of the consent
of the property owners hereinbefore required. The commissioners shall
each receive ten dollars for each day spent in the performance of their
duties and their necessary expenses and disbursements, which shall be
paid by the corporation applying for their appointment.