20 insufficient to pay the said award and said costs, expenses and damages, and if the plaintiff shall fail to pay the amount of such deficiency, judgment shall be entered against the plaintiff for the deficiency and the possession of the property shall be restored to the defendant. (Former section 23, Laws 1891, ch. 4, § 23, as amended by L. 1909, ch. 498, § 4 and L. 1910, ch. 506.) § 21. Corporate powers. Every such corporation shall have power: 1. To take and hold such voluntary grants of real estate and other property as shall be made to it, to aid in the construction, maintenance and accommodation of its railroad or railroads, but the real estate received by voluntary grant shall be held and used for the purposes of such grant only. 2. To purchase, lease, hold and use all such real estate and other property as may be necessary for the construction and maintenance of its railroad or railroads, and the stations or other accommodations necessary to accomplish the objects of its incorporation. 3. To cross, intersect, join and unite its railroad or railroads with any other railroad at any point on its route and upon the grounds of such other railroad company, with the necessary turnouts, sidings and switches and other conveniences in furtherance of the objects of its connections. 4. To take and convey persons and property on its railroad or railroads by the power or force of electricity or compressed air so used as to involve no combustion or impurity of air in tunnels or cars or any other power of like description approved by the commission, and to receive compensation therefor. 5. To enter upon and underneath the several streets, avenues, public places and lands designated by the said board of rapid transit railroad commissioners or the public service commission, and enter into and upon the soil of the same; to construct, maintain, operate and use, in accordance with the plan adopted by said board or commission, a railroad or railroads upon the route or routes and to the points decided upon, and to secure the necessary 21 foundations and erect the columns, piers and other structures which may be required to secure safety and stability in the construction and maintenance of the railroads constructed upon the plan adopted by the said board or commission, and which may be necessary for operating the same, except that nothing in this act shall authorize the construction of a railroad crossing the track of any steam railroad in actual operation at the grade thereof, and it shall be lawful to make such excavations and openings along the route through which such railroad or railroads shall be constructed as shall be necessary from time to time; in all cases the surface of said streets around such foundations, piers and columns shall be restored to the condition in which they were before such excavations were made, as near as may be, and under the direction of the proper local authorities; and in all cases the use of the streets, avenues, places and lands designated by the said board or commission, and the right of way through the same, for the purpose of a railroad or railroads, as herein authorized and provided, shall be considered, and is hereby declared, to be a public use, consistent with the uses for which the roads, streets, avenues and public places are publicly held; but no such corporation shall have the right to acquire the use or occupancy of public parks or squares in such county, or the use or occupancy of any of the streets or avenues, except such as may have been designated for the route or routes of such railroad, and except such temporary privileges as the proper authorities may grant to such corporations to facilitate such construction. (Former section 24, Laws 1891, ch. 4, § 24, as amended by L. 1892, ch. 556, § 4, and L. 1909, ch. 498, § 4.) § 25. [Repealed. § 26. [Repealed. § 27. [Repealed. § 28. [Repealed. § 29. [Repealed. § 30. [Repealed. § 31. [Repealed. Laws of 1909, chapter 498, § 2.] 22-1 § 22. Private construction; franchise to construct, maintain and operate. 1. If or when the necessary consents have been obtained and the detailed plans and specifications have been prepared, either by the board of rapid transit railroad commissioners or by the commission, for the said rapid transit railroad, the commission may with the approval of the board of estimate and apportionment or other analogous authority of such city, grant a franchise to construct, maintain and operate such railroad for the transportation of passengers and property for compensation. The commission shall have power to prescribe all such terms and conditions of such grant and to require such security to be given and filed for the keeping and performance of such terms and conditions as it may deem to be for the interest of the public and of the city and may provide that in connection with the construction of such railroad by the grantee at its own expense any galleries, ways, subways or tunnels for sub-surface structures which may be included in any such plans shall be also constructed by the grantee at the public expense, and in such case the sum or sums to be paid therefor shall be separately stated and the amount appropriated and paid out of the funds hereafter authorized to be provided in case of such construction, and the commission may provide separately for the maintenance, supervision, care and operation of the same as hereinafter authorized under the provisions of section twenty-seven. 2. The grant shall provide that such railroad shall be constructed by and at the expense of the grantee under the direction and supervision of the commission and in accordance with such detailed plans and specifications; that the construction shall be begun within a time to be specified and shall be finished within a specified time thereafter; and that operation of said railroad shall be begun within a specified time, and may fix the time within which portions of the said railroad shall be begun and finished and put in operation, and may provide that the commission may 22-2 extend the time of beginning, of completion and of operation of such railroad or portion thereof, and that if the grantee shall fail to begin or to finish the construction or begin the operation of said road or portion thereof at or within any time so fixed, or shall fail to comply with any of the terms or conditions of such grant, a penalty specified, or the grant and any construction pursuant thereto, may be forfeited to the city. 3. Such grant shall contain a reservation to the city of the privilege upon giving a specified notice to terminate such franchise and to purchase and take the plant and property of the grantee suitable to and used for the purpose of such railroad at any time after the expiration of ten years from the date when operation of any part of said railroad shall begin upon paying an amount for said plant and property as property, excluding any value for the franchise, which amount shall not exceed actual cost of said plant and property, plus fifteen per centum thereof, and shall decrease under provisions of the grant as the franchise continues so that at the end of the full term of the grant no amount shall be paid except for equipment as hereinafter provided. The grant shall provide a method of ascertaining the amount to be paid for such plant and property upon termination by the city of said franchise and for the equipment of said railroad at the end of the full term of the grant, and the grant may provide for determining from time to time, in default of agreement, by arbitration or by the court, a valuation of such plant and property, or any part or portion thereof, for any purpose under said grant. The grant shall make adequate provision for lien upon plant and property and by way of penalty or forfeiture of the grant and any construction pursuant thereto or otherwise to secure compliance with the terms of said grant, efficiency of service at reasonable rates and the maintenance of the property in good condition throughout the full term of the grant. 4. The grant shall provide that any and all income and 22-4 increase derived by the grantee or his assignee or any successive holder of the grant or on his or their behalf in any manner from or in connection with the enterprise of constructing, equipping and operating the said railroad shall after deducting operating expenses, taxes, payments to reserve and amortization funds as provided for in said grant, and not exceeding six per centum interest per annum payable quarterly upon the actual cost of construction and equipment of such road, be divided share and share alike between the granteee and the city, and that upon the expiration of the period specified in the grant the franchise shall end and the plant and property suitable to and used for the purposes of said railroad, except equipment as defined in the grant, shall become the property of the city without compensation to the grantee, and that such equipment shall also become the property of the city upon payment to the grantee of an amount to be ascertained as provided in the grant. The grant may also provide for assuring that in case a new grant of a franchise to maintain and operate the said railroad is made after any such termination of said franchise and purchase and taking of said plant and property pursuant to such notice or after the expiration of the full term of the grant, that the title to and possession of the plant and property so taken and of the equipment at the end of such full term may be transferred directly to the new grantee upon his paying the amount required as aforesaid. At any time within one year prior to the date when the franchise shall be terminated or forfeited by the city or shall come to an end by the expiration of full term or at any time thereafter, the commission may with the approval of the board of estimate and apportionment, or such other local authority, grant a new franchise under the provisions of this section for the construction wholly or in part of such railroad and for the maintenance and operation of the same from and after the date of such termination, forfeiture or end of such grant, or the commission may with like approval enter into contracts for the equipment, maintenance or operation of said railroad, or may itself |