
    In the Matter of the Application of William E. Spier and Others, Freeholders, etc., Resp’ts, v. The Commissioners of Highways of the Town of Moreau, etc., Impleaded, etc , App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 31, 1888.)
    
    1. Bridges—Warren county—Boundary op—Construction—1 Rev. Stat., vol. 3, page 2, seo. 24.
    The southern boundary of Warren county as far as material to this, case is “southerly by the line last mentioned until it strikes the north branch of the Hudson river by the middle of said branch and of the main' stream of said river, until it reaches the southeast corner of the Patent of Queensbury with such variations as may be necessary to include the whole of every Hand, every part of which is nearer to the north or east shore of said river than to the south or west shore thereof, and to exclude’ the whole of any island, any part of which is nearer to the said south or west shore than to the north or east shore aforesaid.” lit Id, that the statute means by the word shore of said river, shore of the main stream of the river and means tliat the middle of the main stream shall be followed. ' That if in following such middle the line comes to an island, then the line is to vary enough so that the island shall nor be divided, but shall belong to that, side of the main stream to which any part of the island is nearer. That the line is not to go cut oi the main stream, hut is only to vary from the middle of the main stream so as not to divide an island therein, hut to leave it on that side to the shore of which it is nearest.
    2 ' Same—Laws of 1841, chapters 85 and 50—Construction of.
    The commissioners named and appointed hy Laws of 1841, chapters 35 and 50, only had authority to build the bridge therein provided, but did not have authority to make arrangements as to its future repair or maintenance
    3. Same—Duty of county to repair.
    If a bridge be of public utility and used by the public, the public must repair it, though it was built by an individual
    
      4. Same—Statute—Laws of 1857. chapter 639, meaning of—Just proportion OF SUCH EXPENDITURE
    Laws of 1857, chapter 639, which provides that “ whenever any adjoining towns shall be liable to make or repair any bridge over a stream dividing said towns, each town shall bear a just proportion of such expenditure,” must be taken in connection with laws of the same year, chapter 383, section 1, “ the two towns are to contribute equally.” Following lapKam v. Rice, 55 N. Y., 472.
    Appeal by the town of Moreau and John Conlin, as sole commissioner of highways, from an order of the Washington county special term, entered in the office of W arren county, ordering that a certain bridge be built, and directing the manner in which the same should be paid for.
    
      Jesse L. L’Amoreaux, for app’lts; M. A. Sheldon, for resp’ts.
   Learned, P. J

The southern boundary of Warren county (which is the line dividing the towns of Moreau and Queensbury) is as follows, so far as material: “And southerly by the line last mentioned until it strikes the north branch of the Hudson river, and by the middle of said branch and of the main stream of said river until it reaches the southeast corner of the Patent of Queensbury with sjich variations as may be necessary to include the whole of every island, any part of which is nearer to the north or east shore of said river, than to the south or west shore thereof, and to exclude the whole of any island, any part of which is nearer to the said south or west shore than to the north or east shore aforesaid 1 R. S., vol. 3, page 8, section 24.

Now it is plain that the meaning is that, after the line strikes the north branch of the Hudson, it is to run by the middle of said branch and of the main stream of said river; those last words being important. It is to run by the mid die of the main stream only. Though there may be side streams of the river, they are not to be considered in running the line. But the middle of the main stream is to be taken, and not the middle between the extreme banks of all streams.

Furthermore, it follows from this that when the description speaks of variations to include or to exclude islands (if there be any) this language refers to islands lying in the main stream of the river. Otherwise, if there were a main stream somewhat narrow, and on one side, say the east, of it were several side streams, making up in all a considerable width, and if in one of those side streams there were an island, part of that island might be nearer to the west shore of the whole river than to the east. Hence, unless the construction above taken be correct, the dividing line would diverge entirely out of the main stream and make a circuit to include the island in a side stream.

This is not a reasonable construction. By the words “shore of said river,” the statute means shore of the main stream of the river, of which it had just spoken. The statute means that the middle of the main stream shall be followed. If, following such middle, the line comes to an island, then the line is to vary enough so that the island shall not be divided, but shall belong to that side of the main stream to which any part of the island is nearer. The word “variations ” indicates that such is the meaning; and: that the line is not to go out of the main stream, but is only to vary from the middle of the main stream so as not' to divide an island therein, but to leave it on that side to the shore of which it is the nearer. Any other construction might carry the boundary line entirely out of the main, stream, and thus leave the whole of the main stream at some place in one county.

This view disposes of the principal question in this case.

It is evident that the wooden bridge, which by the order of the special term is to be rebuilt, spans the main stream' of the river. The dividing line of the counties is therefore the middle of that stream. At this point the river runs substantially eastward. If the south end of this wooden bridge rests (as the appellants claim) on an island, that island is not in the main stream, but separates the main stream from what (if any stream at all) is a side stream. It • must generally be that between the main stream and a side stream, at any place, there will be an island. But, in tracing' the boundary line between the counties, there is to be no. divergence from the middle ef the main stream in order to take in such island, even though the little side stream.might’ be a mile away from the main stream.

So, in this case, the respondents say that the land on which the south end of the wooden bridge rests is not an island. But, even if it were, it plainly appears that the main stream is between that island (or whatever it be) and the shore on the Warren county side. The middle then of that main stream is the boundary line.

The appellants urge that there is water running on the south side of this, so called, island. And they desire to measure from the extreme south line of any such water to the Warren shore, and to fix the boundary line in the middle between' those points-. But it can hardly be contended that the water on the south side of such, so called, island, is the main stream. So that in the appellant’s view there must be two streams. And the statute declares that it is the middle of the main stream which is to be the boundary. We have already shown that it is to islands in the main stream that the variations directed by the statute must apply; and not to islands outside of the main stream, which, in no respect, interfere with the boundary line in the middle of such main stream.

It is next insisted by the appellants that the two bridges, the stone and. the wooden, were, in -1841, erected respéctiyely by .the counties of Saratoga and Warren, under laws 1841, chapter .35 and chapter 50 But those statutes authorize the building of a bridge across the Hudson. And they contain nothing which indicates any such separation or dividing of the work. The bridge is spoken of as a whole,;, and each county is aided by a loan from the state.

The appellants further insist that an agreement was made in 1840 or 1841, between the highway commissioners of the two towns of Korean and Queensbury, that the town of Korean should build the bridge from the Korean side to the sa called island, and the town of Queensbury from said island to the Queensbury side. We think there is no sufficient- proof of any such agreement, Nor do we see any authority in the -highway commissioners thus to change the fnjrure legal obligations of the towns.

Furthermore, it will be seen by reference to the statutes above cited that-the bridge was to be built by commissioners named and appointed by the statutes, and not by the highway commissioners. Whether these persons were or were not commissioners is immaterial. Their authority for building the bridge was derived from the statute. Nothing therein contained authorized them to make arrangements as to future repair or maintenance.

The appellant urges that the duty to maintain this bridge rests on the counties and not on the towns.

’There is nothing in the two statutes of 1841, above cited, which determines this. These statutes gave a loan to the county.which the supervisors were to levy and collect from such towns as they deemed just, and repay to the state.

Hill v. Supervisors (12 N. Y., 52) holds that towns are primarily liable for the maintenance of bridges, including those between towns. This is recognized in Phelps v. Hawley (3 Lans., 164). Chapter 225, Laws of 1841, provide that when adjoining towns are liable to make and maintain any bridge over any stream dividing said towns, such bridge shall be built and repaired at their equal expense; and it "provides a mode of compelling a town which neglects. This is not changed in substance by chapter 383, Laws 1857.

This river is not, at this place, navigable tidewater, and therefore the provisions of chapter 320, Laws of 1880, making the bridge a charge on the counties does not apply.

The two towns of Morean and Queensbury, being in different counties, it is plain that that part of the act last cited which gives the supervisors power to apportion the expense between the towns liable, cannot apply to this case.

The law of 1857, chapter 639, provides for the proceeding here in question whenever any adjoining towns shall be liable to make or repair any bridge over a stream dividing said towns.

Previous to 1840 there had been a toll bridge at this place. Laws 1802, chap. 103; Laws 1830, chap. 277. Then in 1841 the present bridge was constructed.

The rule was long ago laid down that “if a man build a bridge and it becomes useful to the county in general, the county shall repair it.” Rex v. West Riding, Burr., 2594. Or, as again stated, if a bridge be of public utility and used by the public, the public must repair it, though built by an individual. Rex v. West Riding, 2 East., 342. The doctrine is recognized in Heacock v. Sherman (14 Wend., 58) and Dygert v. Schenck (23 Wend., 446). Where it is said in the English cases that the county must repair, the language refers to the system there by which such duties fall on it.. Otherwise with us. Sill v. Supervisors,ut supra. The important point in the present case is that the public are to repair, according to the general rules applicable to such cases. See Dygert v. Schenck ut supra.

We think then that on the facts shown, it sufficiently appears that these towns were bound to maintain, the bridge.

The appellants further insist that if they are liable at all, they should not be charged with one-half; and that this is not a “just proportion of such expenditure,” considering the relative population and taxable property. Laws 1857, chapter 639. But we must take those words in connection with section 1, chapter 323 of the same year That statute) amending chapter 285, Laws of 1841, was construed in Lapham v. Rice (55 N. Y., 472). It was held that the two towns were to contribute equally. This decision shows what a ‘ ‘ just proportion of the expenditure ” means.

After a careful examination of the various objections urged by the appellants, we are satisfied that none of them are valid. It would be unnecessary to state in any detail the voluminous testimony given in the case.

Order affirmed, with ten dollars costs and printing disbursements.

Landon and Ingalls, JJ., concur..  