
    Town of Easton, Respondent, v. The Canal Board and Others, Appellants, Impleaded with Town of Saratoga, Defendant.
    Third Department,
    March 3, 1915.
    Barge Canal Act construed—jurisdiction of Supreme Court to compel Canal Board to construct new bridges—mandamus — injunction — material used and uniformity in construction of bridge.
    The Supreme Court has jurisdiction to entertain either a writ of mandamus, or an action for a mandatory injunction, to compel the State-Canal Board to comply with the Barge Canal Act.
    Action for a mandatory injunction to compel the Canal Board and a town to complete the building of a new bridge to an island in the Hudson river, pursuant to the provisions of the Barge Canal Act. Evidence examined, and held, that the bridge has not been substantially restored to its former condition of safety and endurance, and that a judgment compelling the defendants, other than the town, to complete the building of a new bridge should be affirmed.
    The Barge Canal Act makes no provision as to the material to be used in the construction of the bridge, or that uniformity must exist therein throughout the whole length. Hence, a direction that the bridge should “be one that' conformed for its entire length, in elevation, style, material and construction with said steel spans,” is unauthorized.
    The general principle, however, of reasonable adaptation to the use required would necessitate that approaches to the bridge be made reasonably safe and secure.
    
      Appeal by the defendants, The Canal Board and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 23d day of September, 1914, upon the decision of the court after a trial before the court without a jury.
    The judgment compelled the defendants, other than the Town of Saratoga, to complete the building of a new bridge between the town of Easton in Washington county and an island in the Hudson river to take the place of a bridge which formerly existed between said points, and which formed a part of the bridge known as the Schuylerville bridge.
    
      Egburt E. Woodbury, Attorney-General [Wilber W. Chambers of counsel], for the appellants.
    
      Rogers & Sawyer [Erskine C. Rogers of counsel], for the respondent.
    
      William S. Ostrander, for the Town of Saratoga.
   Smith, P. J.:

Between the town of Easton in Washington county and the town of Saratoga in Saratoga county the Hudson river separates into two channels, which are separated by an island. Between the two towns a bridge has for many years existed from the town of Easton to this island, and extending therefrom to the town of Saratoga. Under the Barge Canal Act the eastern channel of the Hudson at this place was appropriated for the barge canal. The facts material to the questions here raised are recited in the findings of fact 27 to 37 inclusive.

27. That said alterations consisted of removing four piers and five spans of said bridge, leaving four spans remaining of which three were on the Easton side and one on the island side of said bridge; two new piers, one on each side of said barge canal channel, and which were about four feet higher than the piers that were removed, were built; a steel span was built from one new pier to the other which covered the length of three of the removed trusses and a part of the length of each of two other trusses; the spans on both ends of and next to the steel span were removed and in place thereof spans on an incline and made of used timbers were inserted; the remaining spans were raised, so that on both sides of said steel span the bridge was on a grade from the abutments on the shores to said steel span.

“28. That the raising of said portions of said bridge was done by jacking up the ends of the trusses one at a time and putting blocking under them.

“29. That the raising of said portions of said bridge in said manner caused the said portions of said bridge to be badly warped out of shape and strained and weakened said bridge and caused the same to be badly out of alignment.

“30. That the grade of said portions of said bridge was about five per cent.

“31. That when the wooden trusses were raised to obtain the slope to the steel span some of the piers were built up with wooden blocking and not with masonry and such construction was insecure and unsafe.

“ 32. That said grade or slope created an unequal stress and weakened said bridge.

“ 33. That after the completion of said alterations the said bridge over said east channel was by reason of said alterations never suitable or safe for public use.

“ 34. That after the completion of said alterations neither said bridge, nor the wooden parts thereof wholly built by the contractors to replace portions of the bridge removed by them were capable of carrying with safety over two and a half tons.

“ 35. That after the completion of said alterations and on the 10th day of March, 1913, said bridge was inspected by Resident Engineer Holmes who reported to the State Commission of Highways that said bridge was in a very unsafe condition whereupon and on the 2d day of May, 1913, said bridge was condemned by the said commission.

“36. That after the completion of said alterations and before the condemnation of said bridge by the State Commission of Highways a needle beam of the sloping span, which was wholly constructed by said contractors to replace portions of the bridge removed just east of the steel span, broke while a load of gravel weighing about three thousand pounds was being drawn over it.

“ 37. That after the completion of said alterations one of the beams in the sloping part of the said bridge between said steel span and said island, which had been wholly constructed by the contractors to replace portions of the bridge removed by them, broke when a load of irons was being drawn over it.”

The judgment appealed from directs the defendants constituting the Canal Board “ to complete the building of such new bridge.” From this judgment the Canal Board and its constituent members appeal.

It is first urged that the court is without jurisdiction to sustain this action because of lack of consent of the State to be thus sued. But the State is not being sued. These officers of the State are required by the court simply to execute the direction of the statute to build new bridges wherever the same may be required. (See Laws of 1903, chap. 147, § 3, as amd. by Laws of 1910, chap. 83, and Laws of 1913, chap. 801.) Of such actions the court frequently takes cognizance, and these officers might have been mandamused to perform their duty. We have no doubt of the jurisdiction of the court to entertain either a writ of mandamus or an action for a mandatory injunction — the action here under consideration. (Rolston v. Missouri Fund Commissioners, 120 U. S. 390.)

The sole remaining question is one of fact, whether the bridge has been substantially restored to its former condition of safety and endurance. The court has found that it has not.

We are of opinion that the evidence sustains the conclusion reached by the trial judge and that the judgment should be affirmed.

There is one finding of fact, however, which probably is to an extent interpretative of this judgment to which we cannot fully agree. The 43d finding of fact is as follows: “43. That a safe, suitable and proper bridge between said Town of Easton and said island would be one that conformed for its entire length, in elevation, style, material and construction with said steel spans.” This requirement, in my judgment, exceeds that of the statute. The Canal Board is not directed as to the material to be used in the construction of a bridge, or to the effect that uniformity must exist therein throughout the whole length of the bridge. The general principle, however, of reasonable adaptation to the use required would require approaches to the bridge to be made reasonably safe and secure, and probably not less secure than were the approaches to the bridge before interference therewith by the State, I have no doubt that these approaches could be built of wood or other material which would make them substantially safe, and that with such construction the statutory obligations would be fulfilled.

The judgment should, therefore, be affirmed, with costs.

All concurred; Howard, J., in result, in memorandum.

Howard, J. (concurring):

I concur in the result, but not in the rejection of the 43d finding of fact. I believe that a reasonable interpretation of the law requires uniformity throughout the whole length of new bridges constructed by the State when old ones are razed. The State has no right to generate monstrosities or to breed architectural cripples. It has no right to erect unsymmetrical, unsightly, misshapen structures in the municipalities of the Commonwealth, to become blemishes on the landscape, eyesores to the inhabitants.

Judgment unanimously affirmed, with costs.  