Opinion
November 10, 1915.
J. Edward Singleton, for the relator.
Loyal L. Davis, for the respondents.
The question involved upon this appeal is as to the liability of the county of Warren to pay a part of the expense of constructing the southerly portion of a public bridge over the Hudson river between the city of Glens Falls in the county of Warren, and the village of South Glens Falls in the county of Saratoga. The Hudson river forms the boundary line between said counties, the dividing line apparently being the center of the northerly channel running between a small island and the northerly shore. ( Matter of Spier, 3 N.Y. Supp. 438; affd., 115 N.Y. 665.) This island at low water is about 200 feet long and 170 feet wide. At high water it is mostly submerged. It is of lime rock, bare, uninhabited, and is situated in and belongs to the town of Moreau. The former bridge structures were washed away in the spring of 1913. They consisted of two bridges. One extended from the village of South Glens Falls across the southerly channel of the river to the island. The other extended from the island across the northerly channel to the city of Glens Falls. The bridge across the northerly channel had been built in 1889, and had been maintained jointly by the town of Moreau and by either the town of Queensbury or the city of Glens Falls. The bridge across the southerly channel belonged to the town of Moreau, and neither its construction nor maintenance had been contributed to by either the town of Queensbury or the city of Glens Falls. The space between the island ends of these two bridges was a raised dirt roadway about 50 feet in length. The present bridge is a continuous steel structure extending from the foot of Glen street in Glens Falls to the foot of Main street in South Glens Falls. It has six arches. Two of the piers rest upon this island. Its length is about 900 feet. About 400 feet of the bridge spans the space from the city of Glens Falls across the north channel to the high part of the island. The remaining 500 feet cover the space from such part of the island to South Glens Falls. The cost of the bridge up to December, 1914, when it was nearly completed was $113,798.26. The relator has contributed one-half of that sum, and has also paid $1,500 of the expense of over $3,000 of erecting a temporary bridge over the river. The relator has also paid $1,000 damages arising out of a change of grade of the approach to the bridge upon the Glens Falls side. However, the facts regarding this disbursement are too meagrely stated to permit of our passing upon the merits of the claim, but the respondents practically concede that the disbursement should be allowed. The bill presented by the relator to the board of supervisors for a share of the expenses of the city in the construction of such bridges up to December 9, 1914, having been disallowed and rejected by the board, the relator instituted this proceeding. The respondents express their willingness to pay their proper proportion of the cost of constructing the portion of the bridge extending from Glens Falls to the high point of the island. They contend, however, that they should not be called upon to pay any part of the expense of the construction of the portion extending from the high point of the island to South Glens Falls. This is practically the only question involved upon the appeal.
Section 250 of the Highway Law (Consol. Laws, chap. 25 [Laws of 1909, chap. 30], as amd. by Laws of 1914, chaps. 78, 199, and as since amd. by Laws of 1915, chap. 589) provides that "Each of the counties of this State shall also be liable to pay for the construction, care, maintenance, preservation and repair of public bridges, lawfully constructed over streams or other waters forming its boundary line, not less than one-sixth part of the expense of construction, care, maintenance, preservation and repair." The question at issue cannot be considered an open one. In the cases of Matter of Town of Saratoga ( 160 App. Div. 60; affd., 211 N.Y. 543) and Lee v. Town of Saratoga ( 160 App. Div. 112; affd., 214 N.Y. 617) it was held that where the boundary line between two towns was in a channel upon one side of an island, each town was jointly liable for the expense of constructing and maintaining a bridge over both channels of the river, without regard to where the dividing line between the counties was, or whether the greater part of the bridge was in one county or in the other; and that it would be unreasonable to construe the statute to require the town in which an island happened to be located to build the entire span between the island and the bank of the river in such town, as the entire bridge is used by persons passing from one town to the other.
In the case of Lapham v. Rice ( 55 N.Y. 472, 479) it was held, although under an act (Laws of 1841, chap. 225, § 1, as amd. by Laws of 1857, chap. 383) providing that the expense of the construction and maintenance of bridges should be without reference to town lines, that the words "at the joint expense of said towns," in the absence of anything showing a different intention, import that it is to be equally borne by the towns chargeable; that the bridge being upon the lines of each of the towns, is presumptively equally necessary and useful for all; and hence it was thought just by the Legislature that each should contribute equally to its maintenance.
The stream over which the bridge in question was built was, in contemplation of section 250 of the Highway Law, the Hudson river, not simply the northerly channel thereof, nor the southerly channel thereof, but over both. Every proper consideration demands that the burden should be borne jointly and not unequally.
It must, therefore, be held that the city of Glens Falls and the town of Moreau are jointly liable for the expense of the construction of the new bridge, and of the temporary bridge, and that the county of Warren is liable to pay for the construction, care, maintenance, preservation and repair of said new bridge not less than one-sixth part of the expense thereof.
The determination of the board of supervisors should, therefore, be reversed, and the writ sustained, with costs to the relator.
All concurred.
Determination of the board of supervisors reversed, and the writ sustained, with fifty dollars costs and disbursements to the relator.