
    In the Matter of the Application of Certain Freeholders App’lts, v. The Commissioner of Highways of the Towns of Glen and Florida, Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 31, 1888 )
    
    1 Highways—Abandonment of—What does not amount to.
    The compulsory abandonment of an old highway, in the absence of the acquisition of a new way, is not conclusive of an intent to relinquish the old right of way, so Held, where a bridge had been destroyed over eighty years before, and the passage over the stream for the last forty years had been over the tow-path, upon an aqueduct of the Erie Canal, which, passing over the tow-path, was contrary to law.
    3. Same—When begtjlation of, left to local authobities.
    The local authorities will be left to control, and decide as to the care and construction of its highways and bridges, and the courts ought not to interfere unless the action of the local authorities seems to be actuated by other considerations than public interest.
    ' This is an appeal by certain freeholders of the town of Glen in the county of Montgomery, from an order made at special term, denying a motion made upon their application for an order directing the commissioners of highways of the adjoining towns of Glen and Florida, to rebuild a bridge over the Schoharie creek, on the highway alleged to cross the said creek, near the village of Fort Hunter, between the Erie canal and the Mohawk river. The material facts appear to be as follows: Prior to 1807, the highway leading from Schenectady to Utica, crossed the Schoharie creek upon a bridge, at or near the point designated by the peti tioners. A record of this highway was made in 1806; the record for the town of Florida, describing the highway as running westerly and extending to the middle of the Fort Hunter bridge; that of the town of Charlestown (now Glen) beginning at the middle of the Fort Hunter bridge, and running westerly. The courses and distances are given in each record. In 1807, this bridge was destroyed by high water. The creek was, and is, the boundary between the two towns. Some time after 1807, private parties erected a toll bridge over the creek, several hundred feet north of the old bridge, and the public travel was - diverted from the crossing to this bridge. This bridge was carried away by high water in 1847. Thereafter private parties maintained for some years a ferry between the points of the location of the two bridges, but this ferry was abandoned more than thirty years ago. The Erie canal crosses the creek several hundred feet north of the point where the bridge of 1807 stood, and for the last forty years, the public have passed over the tow-path upon the aqueduct of the canal; this has been suffered by the state authorities but is in violotion of law. Occasionally travellers have crossed the creek on the ice at or near the location of the first bridge.
    Telegraph lines have been maintained along the old highway, and they pass over the. creek at or near the location of the old bridge. ItSTo vestige of the old bridge remains, and no person living remembers it. The surveyors who testified upon the reference do not agree as to the location of the old bridge. Practically the highway over or through the creek has long been discontinued at the site of the old bridge; and diverges from its former location so as to make the crossing at the canal aqueduct.
    _ M. L. Stover, for appl’ts; Z S. Westbrook, for commissioners of Florida; R. B. Fish, for commissioners of Glen.
   Landon, J.

The application was made under chapter 639, Laws 1857. This provides that “whenever any adjoin-" ing towns shall be liable to make or maintain any bridge over any stream dividing such towns,” and the commissioners of highways refuse to rebuild it aftér proper request to do so, then a proceeding like this maybe instituted, “and the court or judge shall make such order thereon as the justice of the case may require.” In case the bridge is ordered to be rebuilt, the details of procedure are specified in the act.

We think it was competent for the court upon the facts in this case, to have_ ordered this bridge to be rebuilt, if it had found that “ the justice of the case” required it.

Clearly there is a highway crossing the creek. It was recorded in 1806, and has existed beyond living memory. When the bridge of 1807 was swept away, the public crossed the stream where they could, and as best they could. Finally, by the sufferance of the state they used the roundabout way of the canal aqueduct. But no lawful highway has existed there or can, under the present laws, exist there. Thus the highway has been practically diverted from its proper site to an improper and unauthorized one.

If it were lawful for the public to cross the stream upon the aqueduct, we should have no difficulty in deciding that the public had voluntarily abandoned the highway leading to and over the old bridge, and had acquired the new way by the long disuser of the first and user of the second. But the abandonment of the old way was compulsory, and in the absence of the acquisition of ‘a new way is not conclusive of an intent to relinquish the old right. Horey v. Village of Haverstraw, 14 N. Y. State Rep., 498 ; Driggs v. Philips, 103 N. Y., 77 ; 3 N. Y. State Rep., 69.

We do not think there is any practical difficulty in locating the site of the old bridge. If the order had directed the commissioners to rebuild the bridge upon the old site, as designated by the records, they would have had no difficulty in finding the site, unless they had employed two surveyors instead of one.

Nevertheless, we conclude to affirm the order. It was, under all the circumstances, a matter of discretion. The bridge would cost at least $20,000. It may well be that the state has no valid reason, aside from the statute, to exclude the public from crossing up'on the aqueduct. The present condition of things has been tolerated for forty years. There does not appear to be any increase in population of the two towns or in'the volume of travel over the main highway. The stream is subject to violent freshets, and' great "care must be taken to preserve the bridge from destruction. There does not appear to be any great dissatisfaction with the present state of things. The local authorities can control such matters. Town of Kirkwood v. Newburg, 12 N. Y. State Rep., 420. And the court ought not to interfere unless the action of the local authorities seems to be' governed by other considerations than the public interests. In case of long continued strife, in which the passions are enlisted, the court may wisely interpose We prefer to dispose of this matter without prejudice to the public right to the old highway, or to the renewal of a similar application, if a changed condition of things should render it expedient.

Order affirmed, with $10 costs and printing disbursements.

Learned, P. J., and Ingalls, J., concur.  