
    
      In re Commissioners of Highways of Glen and Florida.
    
      (Supreme Court, General Term, Third Department.
    
    December 31,1888.)
    1. Bridges—Between Adjoining Towns—Duty to Rebuild.
    Under Laws N. Y. 1857, c. 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 just, two such towns may, in a proper case, be required to rebuild such a bridge on a highway, though it has been destroyed for 80 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 40 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.
    2. Same—Discretion oe Court.
    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 dissatisfaction with the present mode of crossing, and that the state makes no objection thereto, the order of the special term refusing the application does not seem to be abuse of its discretion under said statute, and will be affirmed without prejudice to a similar application, if a change in the circumstances should render the rebuilding of the bridge expedient.
    Appeal from special term, Montgomery county.
    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 petitioners. 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 30 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 40 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 violation of law. Occasionally travelers 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. Ho 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.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      
      Stover & Nisbet, for appellants. Z. S. Westbrook, for Commissioners of Florida. R. B. Fish, for Commissioners of Glen.
   L andón, J.,

(after stating the facts as above.) The application was made .under chapter 639, Laws 1857. This provides that “ whenever any adjoining ■towns shall be liable to make or maintain any bridge over any streams dividing such towns,” and the.commissioners of highways refuse to rebuild it after proper request to do so, then a proceeding like this may be instituted, “and the court or judge shall make such order thereon as the justice of the case :shall require. ” In case the bridge is ordered to be rebuilt, the details of proved ure 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 re•corded 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 round.about 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. St. Rep. 498; Driggs v. Phillips, 103 N. Y. 77, 8 N. E. Rep. 514. We do not think there is any practical difficulty in '.locating the site of the old bridge. If the order had directed the commission-ers 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 survej'ors instead of one.

Nevertheless we conclude to affirm the order. It was, under all the cir-cumstances, 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 upon the aqueduct. The present condition ■of things has been tolerated for 40 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, 45 Hun, 323,) 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. Or.der affirmed, with $10 costs, and printing disbursements. All concur.  