
    The Town of East Fishkill, Plaintiff, v. The Town of Wappinger, Defendant.
    (Supreme Court, Dutchess Trial Term,
    October, 1903.)
    Highway Law — Bridges — Joint liability of two towns to repair a bridge over a stream forming their boundary line.
    The Highway Law (L. 1890, ch. 568, § 130) making towns jointly and equally liable for the cost of repairing a bridge over a stream “forming” their boundary line applies when the boundary line is along one side of the creek as well as when it runs through the middle, such line in either case being “formed” by the creek.
    Action to recover one-half the expense of repairing bridges by the plaintiff over a boundary stream, the defendant’s commissioners of highways having refused to join in such repairs after being given the statutory notice.
    The town of Fishkill in Dutchess county was. divided in 1849 by an act of the hoard of supervisors, the new town of East Fishkill (the plaintiff) being created thereby. The line of division was East along Fishkill Creek to its junction with Sprout Creek, “thence up and along the West bank of said Sprout Creek to ”, etc. The territory to the East of this line was constituted as the new town (chap. 411, Laws of 1852), By still another division of the town of Fishkill (chap. 400, Laws of 1875) this territory along the West side of Sprout Creek became of the town of Wappinger (the defendant).
    Charles A. Hopkins for plaintiff.
    George Wood and C. Morschauser, for defendant.
   Gaynor, J.:

If the words, “ thence up and along the West bank of said Sprout Creek”, established the line "along the West bank instead of along the middle of Sprout Creek, which is doubtful (Gouverneur v. National Ice Co., 134 N. Y. 355), then the creek lies wholly within the town of East Eishkill, the plaintiff. But . even so, I think both towns are jointly liable for the repair of the bridges over it. The statute is that in case of bridges “ over streams or other waters forming the boundary line of towns”, such joint liability exists (Highway L., Sec. 130). Though the line be along the West bank, it is formed by the creek as much as though it were along the middle. Whether the line touches and follows the water only along its edge, or is in the stream a fbot, or to the middle, does not make a different case. The statute has to be interpreted liberally, for its intention is to make two towns share equally the expense of bridges which abut on each town for the use of both towns, and that is necessarily the case whether the town line be at the bank or in the middle.

Judgment for the plaintiff.  