George Crane Morehouse.

The supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe online

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Online LibraryGeorge Crane MorehouseThe supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe → online text (page 74 of 96)
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nual meeting, for audit, etc. HM, that the action of the town auditors in giving
leave to the highway commissioners in advance of the making of repairs, to ex-
pend a named sum on the roads of the town, specifying the roads and the amount
to be expended on each, was proper.

lu such case, a finding in favor of the commissioners for moneys expended in
repairing washouts, etc., happening after the annual meeting, will be sustained,
although it appears that before such meeting the roads were in bad condition,
where the evidence goes to show that the roads were greatly injured by a rain-
storm which occurred after the annual meeting.
Bruner etal. v. Lewis etal.,i N. Y. Sup. 403.

In this action, commenced in a justice's court to recover upon a contract for
the repair of a bridge in the town of Wells, the defendant was described in the
title of the summons and complaint " as commissioner of highways in the town
of Wells."

The plaintiff alleged in the complaint that he performed a contract for repair-
ing a bridge across the river, on the road leading from Wells to Lake Pleasant,
" by direction of defendant, at the price of $340, and said job was accepted by
defendant, and the board (of town auditors) directed the money should be raised
to pay said plaintiff, and that the same was paid to defendant to pay plaintiff."

Held, that it was plainly shown by the summons and complaint that the action
was against the defendant in his official capacity.

By chapter 103 of the Laws of 1858, as amended by chapter 443 of the Laws
of 1865, where a bridge is damaged by the elements or otherwise, after any town
meeting, the commissioner, with the consent of the board of town auditors, may
immediately cause it to be repaired, though the expenditure exceed $350.

Held, that the question as to whether or not the bridge became damaged after
the town meeting was to be determined by the commissioner and the board of
town auditors, and that the person contracting with the commissioner for the per-
formance of the work was not required to investigate as to the time at which the
bridge became damaged, but only to see that the consent of the board of town
auditors had been given.

Buyce v. Buyoe, 48 Hun, 433.

A commissioner of highways of a town has no authority, under chapter 103 of
Laws of 1858, as amended by chapter 443 of the Laws of 1865,to make a contract
to build a bridge in place of an old one, even with the consent of the town board,
except in case of damage or destruction after the annual town meeting.



EoADS AND Bridges. 675

Such power and authority Is not conferred upon commissioners of highways by
any other statute. Nor has the town board or the town any authority to make
such contract.

Wrought Iron Bridge Co. v. Barnett, 1 N.Y. State Rep. 600.

§ 856. Under Chapter 225, Laws of 1841.—
Bridges Bet'ween Tottus. — Whenever any two or more
towns shall be liable to make or maintain any bridge or bridges, the
same shall be built and maintained at the joint expense of said towns,
without reference to town lines.

§ 1, chap. 225, Laws 1841, as amended by chap. 383, Laws 1857.
See Decisions, just below.

Commissioners to Make Contracts.— For the

purpose of building and maintaining such bridges, it shall be lawful
for the commissioners of said towns, or of commissioners of either one
or more towns respectively, the other or others refusing to act, to enter
into joint contracts, and such contracts may be enforced in law or
■equity, against such commissioners or their representative successors,
jointly or severally, respectively; and the commissioners of said towns
so liable may be proceeded against jointly for any neglect of duty
in reference to such bridges.

Id., § 2, as amended by Laws of 1857, chap. 383.

Refusal to Repair Bridges. — If the commissioners
of highways of either of such towns, after notice in writing from
the commissioners of highways of any other of such towns, shall
not within twenty days give their consent in writing to build or re-
pair any such bridge, and shall not within a reasonable time there-
after do the same, it shall be lawful for the commissioners so giving
such notice to make or repair such bridge, and then to maintain a
suit at law in their official capacity, against said commissioners so
neglecting or refusing to join in such making or repairing, and in
such suit the plaintifE or plaintiffs shall be entitled to recover so
much from the defendant or defendants, respectively, representing
said other towns as the town or towns would be' liable to contribute
to the same, together with costs of suit and interest, without prov-
ing any contract ; and in an action in pursuance of the act hereby
amended, to recover the expense of building or repairs, it shall not be
necessary, to entitle such commissioner or commissioners to recover
on the trial of the above action, to prove that the defendants, or their
predecessors in office, were at the time of the service of the notice
above mentioned, in the possession of funds belonging to the town
which be or they represent, sufficient to make such repairs, nor shall
the want of funds be any defense to the said action ; and it shall be the
duty qf the board of supervisors of the county in which such towns
are located, to levy the amount of any judgment so obtained, with
costs and interest on the taxable property of any town against the
commissioner or commissioners oi which such judgment has been



676 StrPEEVisoKs' Manual.

so obtained, but the commissioner or commissioners of such town
shall not be personally liable for such judgment.

Id., § 3, as amended by Laws of 1857, chap. 883.

Judgment Recovered to be ToTrn Charg^e.—

Any judgment recovered against the commissioners of highways in
their official capacity, under the provisions of this act, shall be a
charge on said town, and collected in the same manner as other town
charges, except in cases where the court before which the judgment
shall be recovered shall certify that the neglect or refusal of said
commissioners was willful and malicious, in which case said commis-
sioners shall be personally liable for such judgment, and the same
may be enforced against them in the same manner as against indi-
viduals.

Id., § 4.

The provisions of the Revised Statutes relating to town-line roads (R. S. 516,
§§ 73, 74, 75) do not provide for the maintenance of bridges, and the road dis-
tricts therein mentioned do not include bridges; they simply refer to ordinary
road districts, and were intended to provide only for ordinary highway labor.

A bridge, therefore, upon a town-line road which is located partly in each of
the towns, is not to be considered as wholly within the town to which the road
districts including it has been allotted under said provisions; but the towns are
jointly liable for the expense of maintaining it.

The commissioner of highways of one of the towns so liable may waive the
twenty days' written notice required to be given by the act providing for the
maintenance of such bridges (§ 1, chap. 225, Laws of 1841, as amended by chap.
383, Laws of 1857); and where, upon application of the commissioner of the other
town, he absolutely refuses to help rebuild the bridge, when it becomes neces-
sary, he thereby waives notice, and the latter may rebuild and then maintain an
action against the former to recover half the expense.

Day V. Day, 94 N. Y. 153.

The same liability which commissioners of highways are under to repair roads
and bridges in their respective towns, is imposed jointly upon the commissioners
of adjoining towns by chapter 235 of the Laws of 1841, as amended by chapter
383 of the Laws of 1857, as to bridges crossing a stream dividing such towns.

The law is well settled that commissioners of highways are liable to respond
in damages to any person suffering special injury in consequence of their neglect
of duty.

Bryan v. Landon, 3 Hun, 500.

For a failure to keep in repair a bridge over a stream dividing adjoining towns,
as required by chapter 225, Laws of 1841, as amended by chapter 388, Laws of
1857, the commissioners of highways of the said towns are jointly and not sever-
ally liable.

Theallv. Tonkers, 21 Hun, 265; but see 43 id. 588.

In an action against a town to recover damages for its neglect to keep a bridge
in proper repair, it is not necessary to allege in the complaint that the defendant
had money with which to make the necessary repairs.

Where an act of the legislature Imposes upon two towns the duty of keeping a
bridge in repair, an action for their neglect so to do will lie against the two
towns jointly.

Oaltley v. Town of Mamaroneck, 89 Hun, 448 ; but see 84 id. 140.



EoADS AND Bridges. 677

The provisions of the act " relating to the joint liability of commissionerg of
lighways " (§ 1, chap. 225, Laws of 1841), as amended in 1857 (§ 1, chap. 383,
Laws of 1857), which provides that where any two or more towns shall be liable
to build or maintain a bridge, the same shall he done at joint expense, without
reference to town lines, imposes the expense equally upon the towns, without re-
gard to the portion of the bridge located in either. The change of the words
"at the equal expense," in the original act, to "at the* joint expense," in the
amended act, was not intended to affect the proportion chargeable to each town.
Lapham v. Rice, 55 N. Y. 4:12.

The proceedings authorized by the act of 1857 (chap. 639, Laws of 1857) to
compel the repair of bridges, can only be instituted in the cases specifically pro-
vided for by the terms of the act, i. e., of bridges " over streams dividing towns."
Accordingly, Iield, where proceedings were instituted under said act to compel
the repair of a bridge over the A. river, constructed pursuant to chapter 299 of
the Laws of 1863, as a joint bridge by the towns of A. and C, hut which bridge
was wholly within the town of C, the river not dividing the towns, that the
court had no j urisdiction.

It seems, that the act under which the bridge was built, by necessary implica-
tion, charges its support and maintenance upon the two towns; and their liability
to keep it in repair, at joint expense, may he enforced under the general acts pro-
viding for the maintenance of bridges, for the repair of which two or more towns
are jointly liable (chap. 325, Laws of 1841, as amended by chap. 383, Laws of
1857).

Matter of Pet. of Freeholders of Catt. Co., 59 N. Y. 316.

Under the act incorporating ' ' The Leicester Bridge Company " (Laws of 1837,
chap. 388), a bridge was built by such company over the Genesee river, in the
county of Livingston. By the act (§ 9) it was provided that in case the bridge
should be destroyed and not rebuilt as therein specified " the bridge shall there-
upon become a public bridge, and may be maintained at the expense of the county
of Livingston." The bridge was substantially swept away, and was abandoned
by the company. It was rebuilt by the county, and thereafter kept in repair by
the adjoining towns of Qeneseo and Leicester. Plaintiff', under a contract with
the commissioners of highways of said towns, repaired said bridge. In an ac-
tion against the successors in office of the commissioners who entered into the
contract to recover the contract price, held, that the word " may," in the statute,
was mandatory, and imposed the obligation to repair upon the county; that said
commissioners had no authority over the bridge, and could not bind their towns
for its repairs, and that therefore plaintiff could not maintain his action,
Phelps T. Hawley ef al., 5^ N. T. 23.

As to whether, where two towns are divided by a stream, a bridge over which
would connect a highway existing in each of the towns, an implied liability upon
the towns to erect the bridge at joint expense is created, qumre.

No such joint,liability exists unless there is, at the time, a lawful highway in
each town, which would be connected by, and of which the bridge would form a
part.

The mere fact that a highway has been laid out is not sufficient; there must
be an existing thoroughfare suitable for travel.

In 1858 a highway was laid out in the town of P., to the center of I. creek,
which divided that town from the town of B. Between the creek and the high-
land was a marsh 300 feet wide, which was, a portion of the year, covered with
water, and was impassable for teams. No work was ever done on the portion of
the highway passing through the marsh, nor was it ever used as a highway.
Some work was done on the residue of the highway, as laid out. In an action
by the authorities of the town of B., to compel the town of P. to pay half the
expense of a bridge, constructed over the creek in 1869, held, that the highway
in the town of P. was not ' ' opened and worked " within six years after 1858,
within the meaning of the statute (1 R. S. 520, § 99, as amended by chap. 311,
Laws of 1861), and therefore it had ceased to be a highway, for any purpose, at
the time the bridge was built; and that there being no lawful highway in the
town of P., with which the bridge connected, that town was not liable.

Beckwith et al. v. Whalen, 70 N. T. 430.



678 Supervisors' Makual.

§ 857. Bridges over Streams Dividing

TO'WIIS or Counties. — Whenever any adjoining towns
shall be liable to make or maintain any bridge over any streams di-
viding snch towns, whether in the same or different counties, it shall
be lawful for three freeholders in either of such towns, by a petition
in writing signed by them, to apply to the commissioners of high-
ways in each of such towns, to build, rebuild or repair such bridge,
and if such commissioners refuse to rebuild or repair such bridge
within a reasonable time, either for the want of funds or any other
cause, the said freeholders, upon aflBdavit and notice of motion, a
copy of which shall be served on each of said commissioners at least
eight days before the hearing thereof, may apply to the supreme
court at a special term thereof, to be held in a judicial district, in
which such bridge or any part thereof shall be located, or to a judge
of said court at chambers, for a rule or order requiring such com-
missioners to build, rebuild or repair snch bridge, and such court or
judge, upon such motion, may, in doubtful cases, refer the matter to
some disinterested person to ascertain the requisite facts in relation
thereto, and to report the evidence thereof to said court or to snch
judge. Upon the coming in of such report, in case of such refer-
ence, or upon or after the hearing of the motion, in case no such
reference shall be ordered, the court or judge shall make such order
thereon as the justice of the case shall require. If such motion bo
granted in whole or in part, whereby funds shall be needed by the
said commissioners to carry said order into effect, such court or judge
shall specify the amount of money required for that purpose, and
how much thereof shall be raised in each town.

Chap. 639, Laws of 1857, § 1.

Reference. — In case a reference shall be ordered, as specified
in the first section of this act, the referee shall appoint a suitable
time and place for taking the evidence and shall notify one of said
freeholders, and the said commissioners thereof, or cause them so to
be notified ; he shall have power to issue subpoenas for witnesses at
the instance of either party, and may compel the attendance of such
witnesses, or failing to appear in obedience to such subpoena, by at-
tachment, and may punish defaulting witnesses for contempt by fine
or imprisonment ; he shall have power to adjourn such proceedings
from time to time, and to administer the requisite oath to witnesses
before him. The referee shall report the evidence taken before him
to the court or justice who made the order of reference without



Roads and Bkidges. 679

unnecessary delay, and shall be entitled to $3 a day for Ms services,
to be paid in the first instance by the said freeholders.

Id., § 2.

Conuuissioners may Prosecute.— The commis-
sioners of highways of any such town are hereby authorized to in-
stitute and prosecute proceedings under this act, to compel the com-
missioners of such adjoining towns to join in the building, rebuilding
or repair of any such bridge, in like manner as the said freeholders
are hereby authorized so to do.

Id., §3.

Duty of Comxaissioners. — Upon the said order for
building, rebuilding or repairing such bridge being made, and a copy
thereof being served on the commissioners of highways of such ad-
joining towns respectively, the commissioners of highways of said two
towns shall forthwith meet and fix on the plan of such bridge, or the
manner of repairing such bridge, and shall cause such bridge to be
built, rebuilt or repaired, out of any funds in their or either of their
hands apphcable thereto ; and in case no funds or an inadequate
amount thereof are on hand, then they shall cause the same to be
built, rebuilt or repaired upon credit, or in part for cash and in part
upon credit according to the exigencies of the case ; and the com-
missioners are authorized to enter into a contract with any contractor
for building, rebuilding or repairing such bridge, pledging the credit
of each town for the payment of its appropriate share, so far as the
same shall be done upon credit.
Id., § i.

To Repox*t. — The commissioners of highways in each town
shall make a full report of their proceedings in the premises, to the
auditors of town accounts at the time of making their annual report.
The said commissioners for each town shall attach to the copy of the
said order granted by the supreme court, or a judge thereof, an accu-
rate account under oath of what has been done in the premises and
deliver the same to the supervisors of each town. The board of
supervisors, at their annual meeting, shall levy a tax upon each of
such towns, when in the same county, and upon the appropriate town
when in different counties, its share of the costs of building, re-
building or repairing such bridge, after deducting all payments
actually made by said commissioners thereon ; which tax, including



680 SuPEEVisoBs' Makual.

prior payments, shall in no case exceed the amount specified in said
order.

Id., §5.

Appeals. — Either party considering himself aggrieved by the
granting or refusal to grant such order, by the court at special term,
or by a judge of such court, may appeal from such decision to the
supreme court, at general term for the review of such decision. The
supreme court, at the general term, shall have power to alter, modify
or reverse such order, with or without costs.

Id., §6.

The supreme court at special term, or a judge at chambers, shall
have power to grant or refuse costs as upon a motion, including also
witnesses' fees, referee's fees and disbursements. The appeal pro-
vided for in the last section shall conform to the practice of the su-
preme court in case of appeals from the decision of a motion at
special term to the general term of the supreme court.
Id., §7.

Proceeding Trhen Bridge lias been Re-
paired by Individuals.— Whenever any such bridge
shall have been or shall be so out of repair as to render it unsafe for
travelers to pass over the same, or whenever such bridge shall have
fallen down, or been swept away by a freshet or otherwise, if the
commissioners of highways of such adjoining towns, after reasonable
notice of such condition of such bridge, have neglected or refused,
or shall neglect or refuse, to repair or rebuild such bridge, then and
in such case, whatever funds have been or shall be necessarily or
reasonably laid out or expended in repairing such bridge, or in
rebuilding the same, by any person or persons or by any corporation,
shall be a charge upon such adjoining towns, each being liable for
its just proportion ; and the person or persons, or corporation, who
has made such expenditure, or shall make the same, may apply to
the supreme court at a special term, or to a judge at chambers, for
an order requiring such towns severally to re-imburse such expendi-
tures, which application shall be made upon serving papers for such
application upon the commissioners of highways in each of such
towns, at least eight days before such application shall be made, and
such court or judge is authorized to grant an order requiring each
of such adjoining towns to pay its just proportion of such expendi-
ture, specifying the same ; and in case such order shall be granted,
it shall be the duty of the commissioners of highways in each of



Roads akd Bbidges. 681

such towns forthwith to serve a copy of such order upon the super-
visors of each of such towns, who shall present the same to the
board of supervisors at their next annual meeting. The board of
supervisors shall raise the amount justly chargeable upon each town,
and cause the same to be collected and paid to such person or per-
sons, or corporation, as incurred such expenditure. The right of
appeal is given to such party under this section, provided for under
the sixth section of this act.

Id., §8.

On or about the Slat day of January, 1887, certain freeholders of the town of
Owasoo and the city of Auburn, acting under the provigionsof section 1 of chap-
ter 639 of 1857, united in a petition for the building, rebuilding, or repairing of
a bridge, between the said city and town, over the Owasco outlet, at a street
known as Swift street. No action having been taken either by the city or the
town, a motion was made at a special term for an order requiring the commissioner
of highways of Owasco and the common council of Auburn to build or repair the
said bridge, which was denied. Held, that, as it appeared that the approach to
the bridge was destroyed more than twenty-four years ago, it might be fairly
presumed that the public had abandoned the purpose of rebuilding the bridge at
that place, and that the court should not, after this long and unexplained delay,
attempt to put the oflGlcers of the law in motion to require them to rebuild the
bridge.

It seems, that the provisions of the said act are not applicable to the city of
Auburn, and that it was the intention of the legislature to exempt that munici-
pality from all the general laws of the State relative to the laying out, construct-
ing and keeping in repair the highways and bridges within its territorial limits.
{Per Parker, J.)

Matter of Certain Freeholders, 46 Hun, 620.

It appearing that the bridge would cost $20,000, and would always be liable to
destruction by the floods to which the creek is subject, that there is but little
satisfaction with the present mode of crossing, and that the State makes no ob-
jection thereto, the order of special term refusing the application does not seem
to be abuse of its discretion under said statute, and will be afHrmed without pre-
judice to a similar application, if a change in the circumstances should render the
rebuilding of the bridge expedient.

In re Commissioners of Highways, 3 N. Y. Supp. 461.

Under Laws N. Y. 1857, chap. 639, providing that when adjoining towns refuse
to rebuild a bridge over a stream dividing the towns after its destruction, upon
application to compel them to do so the court may make such order as to it may
seem j ust, two such towns may, in proper case, be required to rebuild such a bridge
on a highway though it has been destroyed for eighty years, and the stream has
been crossed at points a few hundred feet distant, by means, first, of a toll-bridge,
next of a ferry, and for forty years solely by the aqueduct of the Erie canal,
which, though illegal, has been permitted by the State for that length of time, as
no discontinuance of the highway has been thus effected.

Id.

This proceeding was instituted, under chapter 639 of 1857, by freeholders of
two adjoining towns to procure an order compelling the commissioners of high-
ways of the said towns to rebuild a bridge over a stream dividing the two towns,
which bridge they were bound to make and maintain. The referee reported that
the bridge should be built; that the highway commissioners and proper officers
of each town were willing to build and maintain the bridge, but could not agree
as to whether it should be built of wood or wrought-iron, one town favoring the
former and the other the latter material; that a wrought-iron bridge with stone
piers should be used, instead of a wooden structure, at a cost not exceeding the
sum of $9,000, one-half to be paid by each town.
86



682 Supervisors' Manual.

Upon an appeal from an order of the Special Term, confirming the report of ths
referee, it was contended that under the act the court had no power to compel the



Online LibraryGeorge Crane MorehouseThe supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe → online text (page 74 of 96)