
    In the Matter of the Petition of Certain Freeholders in the Town of Owasco, and City of Auburn, for an order re quiring the Commissioners of Highways of the Town of Owasco and the Common Council of the City of Auburn to build, rebuild or repair the bridge formerly existing between the City of Auburn and the Town of Owasco at Swift street.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January, 1888.)
    
    1. Bridges—Rebuilding and repairing of—Chap. 639, Laws 1857, not APPLICABLE TO THE CITY OF AUBURN—TlT. 8, §§ 86, 87 AND 103, CHAP. 53, Laws 1879—Powers conferred upon municipalities as to BRIDGES, ETC.
    - The provisions of chapter 639, Laws 1857, are not applicable <o the city of Auburn. It was intended by the legislature to exempt that municipality from all the general laws of the state relative to the laying out, constructing and keeping in repair the highways and bridges within its territorial limits The general laws chapter 639, Laws 1857, in terms, are-only applicable to adjoining towns as such in which respectively the high ways and bridges are under the care and management of commissioners of highways chosen and elected in the manner provided by the statute. In this state the powers conferred upon municipal corporations in respect to streets and bridges within their limits are separate and independent of the general laws relating to the management of highways in the towns and counties.
    $. Same—Presumption as to abandonment—Failure to rebuild for TWENTY-FOUR YEARS.
    Where the approach to a bridge has been destroyed more than twenty-four years, it may fairly be presumed that the public have abandoned the purpose of rebuilding it, and the officers of the town will.not be required after this long delay to rebuild it.
    8. Officers—Commissioners of highways—Public officers not agents OF THE TOWNS.
    The commissioners of highways for the respective towns in the state are not the agents of the towns in which they are chosen, but are public officers charged with the duty imposed upon them by the provisions of the-Revised Statutes, and do not represent the town in its corporate capacity.
    Appeal from an order of the Cayuga special term denying the application of certain inhabitants of the city of Auburn and the town of Owasco for an ordei compelling the said'city and town to repair and construct a bridge over the Owasco outlet under and in pursuance of the provisions of chapter G39 of the Laws ot 1857.
    
      O. É. Aiken, for app’lt; J. W. O’Brien, for the city of Auburn.
   Barker, J.

The Owasco outlet is the boundary line bridge crossing the said stream on the said boundary line was broken down in the year 1863 and has not been restored. These proceedings were instituted for the purpose of securing the building of a bridge at the place of its former location under and in pursuance of the act of 1857. The petitioners, more than three in. number, were inhabitants of said city and town, and their application was opposed by the highway commissioner of the town and the common council of the city of Auburn. We are not advised by the record upon what ground the special term refused to order the commissioner of the town and the common council of the city to rebuild the bridge, or to appoint a referee to ascertain the requisite facts relative to the reconstruction of the same.

We think the order should be affirmed, for the reason 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 municipality from all the general laws of the state relative to the laying out, construction and keeping in repair the highways and bridges within its territorial limits. Neither the common council nor any of the city officers, have conferred upon them the powers and -duties possessed by highway commissioners of the respective towns throughout the state. Under the charter the common council are vested with the power, to be exercised in a particular manner, to cause bridges within the territorial limits to be erected and kept in repair, and the mode and manner of procuring the funds are specially marked out and a hmitatión is fixed as to the sum which may be raised annually for such purposes, and a debt cannot be created upon the credit of the city for such purposes. Title 8, sections 86, 87 and 103, of chapter 53, Laws of 1879. In terms the general laws under which these proceedings were initiated, are only applicable to adjoining towns, as such, m which, respectively, the highways and bridges are under the care and management of commissioners of highways -chosen and elected in the manner provided by the statute. Upon an order being made by the supreme court requiring the rebuilding or repairing of a bridge, the commissioners for the respective towns may cause the expense thereof to be paid out of any funds in their hands applicable thereto; and in case no funds or an adequate amount thereof are on hand, they shall cause the same to be built, re-built or repaired upon the credit of the town, and the commissioners are authorized to enter into a contract with any contractor for building, rebuilding or repairing such bridge, pledging the credit of such town for the payment of its appropriate share, so far as the same may be done by the commissioner upon credit. See section 40.

No such power is conferred upon the common council or other board or officer representing the municipal corporation sought to be charged in part with the expense of erecting the bridge in question. The commissioners of highways for the respective towns in this state are not the agents of the towns in which they are chosen, but are public officers, charged with the duty imposed upon them by the provisions of the Revised Statutes and do not represent the town in its corporate capacity. People v. Board of Supervisors, 93 N. Y., 397.

As to the common council and other officers of the city of Auburn, they represent the municipality, with limited and defined powers, as therein "expressed in the charter, which cannot be enlarged so as to bind the corporation by the order or direction of the court, under the provisions of the act upon which these proceedings are founded. The provisions found in the 143d section of the charter, that the city should be considered as one of the towns of Cayuga county, except as is otherwise in the charter provided, does not have the effect to bring it under the provisions of the said act, for the reason that there were other provisions of the charter providing for the erection and maintenance of bridges and the mode and manner of securing the money to defray the expenses thereof. It has been held in some of the states that the general road laws do not apply to incorporated places having special power to regulate and improve the streets within their corporate limits. Cross v. Morristown, 18 N. J. Eq., 305; State v. Morristown, 33 N. J., 57; Dillon on Municipal Corporations, §§ 534-538 inclusive.

In this state, as a general rule, the powers conferred upon municipal corporations in respect to .streets and bridges within their limits, are separate and independent of the general laws relating to the management of highways in the towns and counties; and after an examination of all the provisions of the charter of the city of Auburn, we are unable to discover any intention on the part of the legislature to subject it to the provisions of the said enactment.

As the approach to the bridge was destroyed more than twenty-four years ago, it may be fairly presumed that the public have abandoned the purpose of rebuilding the bridge at that place. At least, we are all clearly of the opinion that this court should not attempt to put the officers of the law in motion requiring them to rebuild the bridge after this long and unexplained delay.

The order appealed from should be affirmed, without ■costs to either party.

Smith, P. J., Haight and Bradley, JJ., concur upon the last ground stated in the opinion.  