§ 28. Tunnel railroads. When, according to the route and plan for the
building of its road, adopted by any railroad corporation, including
corporations organized under chapter one hundred and forty of the laws
of eighteen hundred and fifty, and the acts amendatory thereof, and
supplementary thereto, it shall be necessary or proper to build it or
any part of it underground, or to tunnel or bridge any river or waters,
such corporation may enter upon, acquire title to and use such lands
under water and uplands, except on or along any canals of the state, as
shall be necessary for the purpose herein mentioned, and may construct,
erect and secure the necessary foundations and other structures which
may be required for operating and maintaining such road, or connecting
the same with another, and to acquire, in the manner provided by law,
such land or rights or easements in lands along its route, upon, over or
beneath the surface thereof as may be necessary for the construction of
its road and making such connections. Where such road runs underneath
the ground, at such depth as to enable the corporation to tunnel the
same, such tunnel shall be so built and at all times kept in such
condition as to make the surface of the ground above the same and in the
neighborhood thereof firm and safe for buildings and other erections
thereon, and if surface excavations are made the surface shall be
restored to its former condition as soon as can be done, except so far
as may be actually required for ventilation of the tunnel beneath the
same or access thereto. Such road or any part of it may be built within
the limits of any city or incorporated village of this state, and run by
means of a tunnel underneath any of the streets, roads or public places
thereof, provided such corporation shall, before constructing the same
underneath any such street, road or public place, have obtained the
consent of the owners of one-half in value of the property bounded on
the line of such street, road or public place, and the consent of the
board of trustees of the village, by a resolution adopted at a regular
meeting and entered on the records of the board, or of the proper
authorities of the city having control of such streets, roads or public
places. If the consent of such property owners can not be obtained, the
appellate division of the supreme court in the department in which said
city or village or any part thereof is situated, may upon application
appoint three commissioners, who shall determine, after a hearing of all
parties interested, whether such railroad ought to be built underneath
such streets, roads or public places, or any of them, and in what manner
the same may be so built with the least damage to the surface and to the
use of the surface by the public and the determination of the
commissioners confirmed by the court may be taken in lieu of the consent
of the property owners. All railroad corporations constructing their
road under this section shall be subject to all the provisions of this
chapter applicable thereto. Any other railroad corporation may connect
its road therewith, at such points or places as it may elect, and where
such connections shall be made by connecting roads, the railroad
corporations owning such roads shall build, at their joint expense, and
for their joint use, such passenger and freight depots, and other
accommodations for handling passengers and freight, as may be required
for the convenience of the public. All railroad corporations
constructing any tunnel under the provisions of this section shall be
liable to any person or corporation for all damages which may be
sustained by reason of the construction of such tunnel. Whenever it
shall be necessary in constructing any railroad authorized by this
section through any city or incorporated village, to alter the position
or course of any sewer, or water or gas pipes, it shall be done at the
expense of the railroad corporation under the direction of the
department or corporation having charge thereof, so as not to interfere
with such work. In all cases the use of streets, docks and lands beneath
which such railroad is constructed, and on the route thereof and the
right of way beneath the same, for the purpose of such railroad, shall
be considered, and is hereby declared, a public use, consistent with and
one of the uses for which streets and docks are publicly held. No
public park or square in any city or village of this state shall be used
or occupied by any corporation for any of the purposes of this section,
and every road constructed hereunder in or through any such street or
public place shall be wholly underground and constructed in a tunnel and
not otherwise. But nothing in this section shall operate to revive any
charter or franchise heretofore granted by or in the city of Brooklyn.
This section does not authorize the construction of any bridge over or
across the East or North rivers.