
    The Town of Conewango, Respondent, v. Julius N. Shaw and Others, as Commissioners Appointed by the Supreme Court for the Drainage of Low, Wet Marsh Lands, Appellants.
    
      Town highway—channel out in a highway by drainage commissioners — action to compel them to bridge the channel.
    
    Where the commissioners of drainage of marsh lands have, without the consent of the town authorities, cut a channel for the drainage of water across a town highway, and have omitted to construct a suitable bridge across such channel for the convenience of the public using said highway, an action is maintainable in the name of the town under section 15 of the Highway Law (Chap. 568 of the Laws of 1890) to compel the performance of their duty by the commissioners, in spite of the fact that, the statute under which they act does not in terms confer upon them the power to construct such a bridge.
    Appeal by the defendants, Julius H. Shaw and others, as commissioners appointed by the Supreme Court for the drainage of low, wet marsh lands, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 27th day of December, 1897, upon the decision of the court, rendered after a trial at the Erie Special Term, overruling their demurrer to the complaint interposed on the ground that the complaint failed to state facts sufficient to constitute a cause of action.
    
      
      Wade dk Stevenson, for the appellants.
    
      Goodwill c& Benson, for the respondent.
   Hardin, P. J.:

In 1894, proceedings were instituted under the Drainage Law for the purpose of draining some 20,000 acres of land situated in' the counties of Cattaraugus and Chautauqua. Upon presentation of a petition to the Supreme Court the defendants were named as commissioners clothed with the authority and duty to execute the act authorizing the drainage of the lands for the purpose of preserving the public health. It is alleged that the defendants entered upon the discharge of their duties and cut channels for the drainage of water, and, among other things, in the execution of their-duties as such commissioners, they cut a channel across a highway in the plaintiff town some fifty feet wide and six feet deep, and at the time of the commencement of this action they had omitted and failed to construct a suitable bridge across said channel for the convenience of the public using said highway. The town authorities in no way consented to the construction of the ditch across the highway of the town of the plaintiff. The pivotal question presented in this case is whether the defendants, in the discharge of their duties as commissioners, and in the exercise of the powers conferred upon them by the statute, ought to have covered the ditch which they constructed across the highway of the plaintiff — ought to have constructed a bridge suitable for the convenience of the public in the use of the highway instead of leaving the highway in an improper condition. The statute under which the defendants act does not, in terms, confer upon them the power to construct bridges across the ditches which they make or cause to be made in carrying out the powers and duties conferred upon them by the statute. However, it seems reasonable to declare that the statute impliedly conferred power and made it the duty of the commissioners, when cutting a channel through the highway of the plaintiff, to leave the same covered with a bridge of a suitable nature and character to accommodate the needs of the public. Having failed to discharge that duty, this action is brought to declare the duty and to enforce the liability on the part of the defendants occasioned by an omission to discharge such duty. It is not necessary on this occasion to determine the extent of the liability of the defendants as commissioners ; nor the exact consequences of their omission to perform the duties imposed upon them by statute. Such questions will more appropriately arise when all the facts mentioned in the complaint are established, and the defendants are given an opportunity to present any mitigating facts or reasons why they have not fully discharged the duty imposed upon them by statute. To sustain the complaint it is enough that it can be seen that it contains facts sufficient to make out a cause of action against the defendants.

It is provided in section 15 of the Highway Law (Chap. 568, Laws of 1890) that the commissioners of highways may bring an action in the name of the town against any person or corporation to sustain the rights of the public in and to any highway in the town, and to enforce the performance of any duty enjoined upon any person in relation to such highways. If it be right to assume that the defendants have failed in the full performance of the duty imposed upon them by statute, then it would seem to follow that the complaint states facts sufficient to constitute a cause of action, and that the demurrer was properly overruled, and the interlocutory judgment should be affirmed, with costs, with leave to the defendants to answer upon withdrawing their demurrer, and the payment of the costs of the same and of this appeal.

All concurred.

Interlocutory judgment affirmed, with costs, with leave to defendants to withdraw their demurrer and answer upon payment of the costs of the demurrer-and of this appeal.  