In cities of over one million (L. 1891, ch. 4), § 5.

and with like effect. Upon obtaining the approval and consent of the local authorities as above provided, the said board of rapid transit railroad commissioners shall also, unless such approval and consent of local authorities shall have been refused, take the necessary steps to obtain, if possible, the said consents of the property owners along the line of the said route or routes. For the purposes of this act the value of the property bounded on that portion of any street or highway in, upon, over or under which it is proposed to construct or operate such railway or railways, or any part thereof, shall be ascertained and determined from the assessment roll of the city in which the said property is situated, confirmed or completed last before the local authorities shall have given their consent as above provided. If such consents of property owners cannot be obtained, the said board may, in its own name, make application to the general term of the supreme court in the judicial district in which such railway is to be constructed for the appointment of three commissioners to determine and report after due hearing whether such railway ought to be constructed and operated. Two weeks' notice of such application shall be given by daily publication thereof, Sundays and holidays excepted, in six daily newspapers published in the city where such proposed railway is to be constructed, if there be so many many newspapers published in said city, and if not, then in all the daily newspapers published in said city. The newspapers in which said publication shall be made shall be designated by the general term of the supreme court to which such application is to be made on the. application of the commissioners without notice. The said general term, upon due proof of the publication aforesaid, shall appoint three disinterested persons who shall act as commissioners, and such commissioners within ten days after their appointment shall cause public notice to be given in the manner directed by the said general term of their first sitting, and may adjourn from time to time until all their business is completed. Vacancies in such commission may be filled by said general term after such notice to persons interested as the general term may deem proper, and the evidence taken before as well as after such vacancy occurred shall be deemed to be properly before such commissioners. The said commissioners shall determine after public hearing of all parties interested whether such railroad ought to be constructed and operated and shall report the evidence taken to said general term, together with a

In cities of over one million (L. 1891, ch. 4), § 6.

report of their determination whether such road ought to be constructed and operated, which report, if in favor of the construction and operation of such road, shall, when confirmed by said court, be taken in lieu of the consent of the property owners above mentioned. Such report shall be made within sixty days after the appointment of said commissioners, unless the said court, or a judge thereof, shall extend such time. (Amended by L. 1895, ch. 519, and L. 1904, ch. 564, in effect May 3, 1904.)

L. 1891, ch. 4, § 6 (C. & G. Gen. Laws, etc., p. 3213), amended by L. 1902, ch. 542, in effect April 11, 1902, as follows:

§ 6. Plan; subways; work at points of subsurface structures; expenses. When the consents of the local authorities and the property owners, or, in lieu thereof, the authorization of the said general term of the supreme court upon the report of commissioners, shall have been obtained, the board of rapid transit. railroad commissioners shall at once proceed to prepare detailed plans and specifications for the construction of such rapid transit railway or railways in accordance with the general plan of construction, including all devices and appurtenances deemed by it necessary to secure the greatest efficiency, public convenience and safety, including the number, location and description of stations and plans and specifications for the suitable supports, turnouts, switches, sidings, connections, landing places, buildings, platforms, stairways, elevators, telegraph and signal devices, and other suitable appliances incidental and requisite to what the said board may approve as the best and most efficient system of rapid transit in view of the public needs and requirements, and the said board may, in its discretion, include in said plans provisions for subways or tunnels for sewers, gas or water pipes, electric wires and other conductors proper to be placed underground, whenever necessary so to do, in order to permit of the proper construction of any railway herein provided for in accordance with the plans and specifications of the said board. Stations and station approaches may be under or over streets of the route or cross streets, and the board of aldermen, or other legislative body, of any such city shall have power to regulate by general or special ordinance or resolution, the erection, alteration and maintenance upon or in connection with any building used wholly or in part for station purposes, or approaches, of any and all structures or parts of structures extending over the whole or any part of any

In cities of over one million (L. 1891, ch. 4), § 6.

sidewalk or sidewalks adjacent thereto. The board may, from time to time, alter such detailed plans and specifications, but always so that the same shall accord with the general plan of construction; but whenever a contract shall have been made for the construction of any railway herein provided for, no such alteration shall be made by the board without the consent of the contractor and his sureties, except as liberty shall have been reserved in such contract by said board for such alteration. Whenever the construction of any railway, depressed way, subway or tunnel under the provisions of this act shall interfere with disturb or endanger any sewer, water pipe, gas pipe, or other duly authorized subsurface structure, the work of construction at such points shall be conducted in the city of New York in accordance with the reasonable requirements of the commissioner of public works, and in other cities in accordance with the reasonable requirements and under the supervision of the officer or local authority having the care of and the jurisdiction or control over such subsurface structures so interfered with, disturbed or endangered. All expenses incidental to such supervision and to the work of reconstructing, readjusting and supporting any such sewer, water pipe, gas pipe or other duly authorized subsurface structure shall be borne and paid by the company which shall have acquired the right, privilege and franchise to construct, maintain and operate such railway, pursuant to a sale of the same at public auction, as hereinafter provided, if any such sale shall be made by said board. Where under the direction of the said board or in pursuance of any general plan adopted or of any contract made by the said board, galleries, ways or subways shall be constructed to contain sewers, pipes or other subsurface structures, the said galleries, ways or subways shall be maintained by the said city and shall be in the care and charge of the said board and subject to such regulations as it shall prescribe not inconsistent with the provisions of this act, and any revenue derived therefrom shall be paid into the treasury of said city, except that where bonds shall have been issued to provide for the cost of construction of such railroads, such amounts shall be paid to the sinking fund of the city, if there be one, or if not then into the sinking fund, to be established and created out of the annual rentals of the said road, as provided in section thirty-seven of this act. Provided, however, that any person or corporation who or which at the time of the construction of the said galleries, ways or sub

In cities of over one million (L. 1891, ch. 4), § 32.

ways, shall own pipes, subways or conduits in a street, avenue or public place in which said galleries, ways or subways shall be constructed pursuant to this act, shall be entitled to the use of such galleries, ways or subways for his or its said pipes, subways or conduits in the same manner as the said person or corporation shall be entitled by law to the use of such street, avenue or public place, and that no rent shall be charged for such use, except a reasonable charge to defray the actual cost of maintenance, unless such pipes, subways or conduits shall be of greater capacity than those theretofore owned by such person or corporation in said street, avenue or public place, and that, if the capacity of any such pipe, subway or conduit, so placed in the said galleries, ways, or subways shall be increased, the rent shall be charged only for such increased capacity; and provided further, that the placing in any such galleries, ways, or subways of the subways or conduits of any corporation owning subways or conduits for electrical conductors, shall not in any wise affect the right of such corporation to charge and demand such compensation or rent for the use of said subways or conduits by other corporations or individuals as is, or may be, permitted by law. (Amended by L. 1892, ch. 556; L. 1895, ch. 519; L. 1896, ch. 729, and L. 1902, ch. 542, in effect April 11, 1902.)

Change of location of tunnel.- Where the location of a tunnel in a street is changed from that fixed by the plans approved by the court, without the consent of property owners, or the approval of the court, the property owners may restrain the construction of the tunnel until the necessary authority for changing the location had been obtained. But such an action will not be permitted, in view of the enormous public interest involved where it appears that it was not commenced until after the excavation of the tunnel had been substantially completed, and that an injunction would seriously affect those engaged in the construction of the tunnel, and would be of no material advantage to such owners. Barney v. City of New York, 83 App. Div. 237, 82

N. Y. Supp. 124.

L. 1891, ch. 4, § 32 (C. & G. Gen. Laws, etc., p. 3231), amended by L. 1902, ch. 584, in effect April 14, as follows:

$ 32. Connecting routes; extension of lines; additional facilities; compensation, etc. The said board of rapid transit railroad commissioners may also from time to time, as in this section hereinafter provided, grant a right or rights, franchise or franchises or enter into a contract or contracts, upon application to

In cities of over one million (L. 1891, ch. 4), § 32.

said board of any railroad corporation owning or actually operating a railroad wholly or in part within the limits of the city in which the said board has power to act, or of any railroad corporation now or hereafter incorporated and for the purpose so declared in its articles of association, of constructing and operating a tunnel railroad or railroads in the said city to be connected with any railroad or railroads within the state of New York or any adjoining state and thereby forming a continuous line for the carriage of passengers and property between a point or points within and a point or points without the said city. If and when in the judg ment of said board the public interests so demand, the said board may by the concurrent vote of six of its members fix and determine the route or routes by which any such railroad corporation making such application may connect with other railroads or the stations thereof, or with ferries, or may establish and construct or extend its lines within said city, and may authorize any such railroad corporation to lay an additional track or tracks on, above, under or contiguous to a portion or the whole of the route or routes of its railway or railways within said city, or to acquire terminal or other facilities necessary for the accommodation of the traveling public on any street or place except the place now known as Battery park on which said railway shall be located; and may also authorize any such railroad corporation to lay its tracks and operate its railway to any terminal or terminals within the said city, and to construct and operate any such railroad or connecting railroad under any lands, streets, avenues, waters, rivers, parkways, highways or public places in the said city, with all necessary sidings, platforms, stations, facilities for access to the surface and other appurtenances and with the right to emerge to the surface upon private lands at the termini, and to transport over the same passengers or freight or both, and to run over the same either passenger trains or freight trains or mixed trains. The said board shall fix and determine the locations and plans of construction of the railways upon such route or routes and of such tracks and facilities, the times within which they shall be respectively constructed, the compensation to be made therefor to the city by the railroad corporation to which the grant shall be made, and such other terms, conditions and requirements as to the said board may appear just and proper, provided, however, that every such determination, authorization and license shall be made upon the condition that the railroad corporation to which