Interregional Highways/Appendix 4
APPENDIX IV
New York Grade Crossing Elimination Act of 1928
SECTIONS PRESCRIBING LAND ACQUISITION PROCEDURE
Source: McKinney’s Consolidated Laws of New York, Annotated, Book 65, Unconsolidated Laws, (1942), title 22, sec. 7905; 1943 Cumulative Annual Pocket Part.
§ 7905. Acquisition Of Lands; Temporary Occupation
1. The public service commission shall direct the department of public works or the railroad corporation or corporations to prepare an accurate description and map of any lands which the commission may deem necessary in the elimination of any crossing or of any land in and to which an easement right may be deemed necessary, or of any rights of abutting property owners the temporary appropriation of which may be deemed by the commission to be necessary, specifying the particular easement right. On the approval of such description and map by such commission, such commission shall deliver such description and map to the department of public works and shall direct such department to acquire such lands and easement rights by appropriation as prescribed by this act.
2. Such description and the original tracing of such map shall be filed in the office of the department of public works, which shall cause a certified copy of such description and map to be filed in the office of the department of state and notice of such filing to be given to the public service commission,
3. On the filing of such description and map in the office of the department of state, the people of the state of New York, their officers and agents, may immediately enter upon and take possession of the lands so described for the purpose of the elimination of any crossing.
3-a. If the public service commission shall determine, prior to the service of such description and map on the owner or owners of land and easement rights, that changes, alterations or modifications of such description and map as filed in the office of the department of state should be made, it shall direct the department of public works or the railroad corporation or corporations to prepare an amended description and map. On the approval of such amended description and map by the commission it shall be delivered to the department of public works and filed in the office of the department of state in the same manner as the original description and map was filed and shall thereupon in all respects and for all purposes supersede the description and map previously filed.
3-b. If the public service commission shall determine prior to the service of such description and map on the owner or owners of land and easement rights that such description and map should be withdrawn, it shall file a certificate of withdrawal in the offices of the department of public works and the department of state. Upon the filing of such certificate of withdrawal the description and map to which it refers shall be canceled and all rights thereunder shall cease and determine. 4. The department of public works shall thereupon deliver to the attorney-general a copy of such description and map, whereupon it shall be the duty of the attorney-general to advise and certify to the department of public works the names of the owners of the lands so described, including the owners of any right, title or interest in and to such lands. The department of public works shall thereupon cause a copy of such description and map, with notice of the filing thereof in the office of the department of state, to be served on the owner or owners of the lands and easement rights so certified by the attorney-general and from the time of such service the appropriation by the people of the state of the property described in such notice shall be deemed complete and, thereupon such property shall become and be the property of the people of the state: Provided, however, that in the event that the lands or interests therein set forth in such description and map shall. be owned by a municipal corporation and used for the purposes of impounding, storing or transporting water for a municipal water supply or for the sanitary protection thereof, such appropriation shall be subject to the express condition that the use and occupation of such lands or interests therein shall not endanger or injure the water-supply structures or other property of such municipal corporation or interfere with the use and operation thereof for water supply or sanitary protection purposes.
5. Such service must be personal, if the person to be served can befound within the state. If the department of public works shall not be able to serve such notice or cause the same to be served upon the owner or owners personally within the state, after making an effort so to do which such department shall deem to be reasonable and proper, service may be made by filing such notice, description and map in the office of the clerk or register of the county wherein the property 80 appropriated is situated, and by causing such notice to
e recorded in the books used for recording deeds in the office of such clerk or register. On the filing of such notice with such clerk or register, it shall be the duty of such clerk or register to record same in the books used for recording deeds in the office of such clerk or register and to index the name of the person or persons to whom such notice is directed as a grantor in an index book to be kept by such clerk or register; and the record of such notice shall be presumptive evidence of due service thereof.
6. If service be personal, the department of public works shall thereupon cause a copy of such notice, together with an affidavit of due service thereof on such owner or owners, to be filed and recorded in the same manner as provided for recording a notice served by filing as aforesaid and it shall be the duty of such clerk or register to record and index same as provided in case service is other than personal; and the record of such notice and of such proof of personal service shall be presumptive evidence of due service thereof.
7. Claims for the value of the property appropriated and for legal damages caused by any such appropriation may be adjusted by the department of public works, with the approval of the railroad corporation or corporations and county or counties bearing a part of the cost of the elimination, even though a claim has been filed with the court of claims, if the amount thereof can be agreed upon with the owner or owners thereof. Upon making any such adjustment and agreement, the department of public works shall deliver to the comptroller such agreement and a certificate stating the amount due such owner on account of such a propriation of his land or other property and the amount so fixed shall be paid out of the state treasury from moneys appropriated for such elimination from the proceeds of such state bonds but not until there shall have been filed with the comptroller, a certificate of the attorney-general showing the person or persons claiming the amount so agreed upon to be legally entitled thereto, and the railroad corporation or corporations and the county or counties shall pay to the state their proportionate shares as prescribed by this act of any amount so agreed upon as part of the cost of such elimination.
8. Any owner may present to the court of claims a claim for the value of such property appropriated and for legal damages, as provided by law for the filing of claims with the court of claims. Awards and judgments of the court of claims shall be paid in the same manner as awards and judgments of that court for the acquisition of lands generally and shall be paid out of the state treasury from moneys appropriated for such elimination from the proceeds of such state bonds, and the railroad corporation or corporations and the county or counties sharing in the cost of such elimination, shall pay to the state their proportionate shares as fixed by this act of any such judgment as a part of the cost of such elimination; and if necessary, the comptroller shall revise or supplement his determination, as prescribed by this act, relative to times, amounts, and manner of repayments to the state by such railroad corporation or corporations and the county or counties bearing a part of the cost of the elimination, so as to provide for the payment to the state of the part of such judgment chargeable hereunder to such corporation or corporations and such county or counties.
9. The expense of such acquisition, including the cost of making surveys and preparing descriptions and maps of lands to be acquired, serving notices of appropriation, making appraisals and agreements and of searches ordered and examinations of title made by the attorney-general, shall be deemed part of the cost of such elimination and shall be borne in the proportions prescribed by this act.
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17. If any lands, including lands under water, and easement rights, which the public service commission may deem necessary in the elimi- nation of any crossing are owned by the state, such commission shall deliver the approved description and map of such lands and easement rights to the department of public works and shall direct such department to make application to the board of commissioners of the land office for the transfer of the control or jurisdiction of such lands and easement rights to such department for the purpose of accomplishing such elimination. Upon such application being filed, the board of commissioners of the land office may transfer control or jurisdiction of such lands and easement rights to the department of public works for the purpose of accomplishing such elimination upon such terms and conditions as such board may prescribe, provided, however, that such transfer shall not become effective until the said terms and conditions have been accepted and approved by the officer, board, commission or agency which had control or jurisdiction over such lands and easement rights.
Upon such transfer being so accepted and approved, the department of public works shall cause a certified copy of the description and map of such lands and easement rights to be filed in the office of the department of state, and shall notify the public service commissioner of such filings. 18. Notwithstanding any other provision of this chapter and the acts supplemental thereto and amendatory thereof or of any other statute general or special a municipal corporation may grant a permit to the department of public works to occupy, for grade crossing elimination purposes, any of the lands set forth and described on the map prescribed by section five of this chapter which are owned by such municipal corporations, respectively. Such permit may be for permanent or temporary occupancy as shall be determined by the department of public works, and the permit shall state the purposes for which the and is obtained, together with the terms and conditions including payment, if any, which is to be made under the permit. The permit shall be in lieu of an appropriation of land as provided in this act. After approval by the public service commission such permit shall be in force and the lands may be utilized by the people of the state of New York, their officers and agents, or by any railroad corporation to which such permit may be transferred or assigned, for grade crossing elimination purposes. Payment, if any, shall be made by the comptroller and paid out of the state treasury from moneys appropriated for such elimination from the proceeds of such state bonds, after the department of public works has filed a copy of the approved permit with the comptroller. The railroad corporation or corporations and the county or counties shall pay to the state their proportionate shares as prescribed by this act of the amount specified in the permit.
19. If, at or after the expiration of thirty days from the service of the copy of such description and map and notice of the filing thereof in the office of the department of state, the superintendent shall deem it necessary to cause the removal of an owner or occupant from any lands or easement rights so acquired, he may cause the owner or occupant to be removed therefrom and the possession to be delivered to him in the same manner and by the same proceedings and before the same officers as in the case of a tenant holding over after the expiration of his term without permission of his landlord, except as follows: the petition shall be preceded by ten days’ notice to quit, in the form and served in the manner prescribed by section fourteen hundred and sixteen of the civil practice act, and the giving of such notice shall be stated in the petition. The proceedings shall be brought in the name of the superintendent as agent of the state. If any person proceeded against shall, on return of the precept, contest the petition by an answer raising any material issue, the attorney-general shall be notified and he thereafter shall represent the petitioner in the proceedings. No execution shall issue for costs, if any, awarded against the state or the superintendent, but they shall be part of the costs of the acquisition and be paid in like manner. Proceedings may be brought separately against one or more of the owners or occupants of the lands or easement rights, or one proceeding may be brought against all or several of the owners or occupants of any or all the lands or easement rights within the territorial jurisdiction of the same justice or judge; and in any case precepts or final orders shall effect or be made for immediate removal of persons defaulting in appearance or in answering, or withdrawing their answers, if any, without awaiting the trial or decision of issues raised by contestants, if any. L. 1928, c. 678, §5, amended L. 1929, c. 645, §§ 4, 5; L. 1929, ec. 647, 657; L. 1931, c. 711; L. 1933, c. 692; L. 1937, c. 585, §§ 1, 2; L. 1940, c. 101, eff. March 7, 1940.