Section 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.