
    Town of East Fishkill, Respondent, v. Town of Wappinger, Appellant.
    
      Town bridge — expense of construction, how shared by towns abutting on the strea,m —when a town must pay one-half and when a “just and equitable share”—what desmption of a boundary line does not convey to the center of a stream—meaning of words “ streams or other waters upon their boundaries.”
    
    The rule, that a grant describing the boundary line as upon or on or along a fresh water stream conveys to the center of the stream, does not apply where the boundary is expressly declared’to be the bank of the stream. '
    Jn 1849 the board of supervisors of Dutchess county created the town of East Fishkill from a part of the town of Fishkill. Part of the dividing line ran as follows: “Thence north /* * * to the. north bank of the Fishkill creek; thence east along said creek until its junction with the Sprout creek, thence up and along the west bank of said Sprout creek to the line dividing the said town of Fishkill and the town of La Grange. All that part of the said town •of Fishkill lying east of said division line shall be constituted a new town and known by the name of East Fishkill.”
    
      In 1875 the Legislature formed the town of Wappinger from the then town of Fishkill, preserving the west bank of Sprout creek as the division line between such new town and the town of East Fishkill, the description providing that “ All that part of the town of Fishkill (within' certain designated boundaries), and running from thence in a straight line due east, to the westerly bank, of Sprout creek is hereby erected into a separate and new town, to be hereafter known and distinguished by the name of ‘ Wappinger.’ ”
    
      Meld, that Sprout creek is wholly within the town of Bast Fishkill, and, although, it does not constitute the boundary line, is included within the expression “streams or other waters upon their boundaries,” contained in section 130 of the-Highway Law (Laws of 1890, chap. 568, as amd. by Laws of 1902, chap. 321), which provides: “The towns of this State, except as otherwise herein provided, shall be liable to pay the expenses for the construction and repair of its. public free bridges, constructed over streams or other water within their bounds, and their just and equitable share of such expenses when so constructed over streams or other waters upon their boundaries * * *; and when such, bridges are constructed over streams or other waters forming the boundary line of towns, either in the same or adjoining counties, such towns shall be jointly liable to pay such expenses.”
    That consequently the towns of East Fishkill and Wappinger were to hear a. “just and, equitable share” of the expense of building a bridge across Sprout creek and not necessarily one-half thereof.
    Appeal by the defendant, the Town of Wappinger, from a judg„. ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 22d day of October, 1903, upon the decision of the court rendered after a trial at the Dutchess County Special Term.
    
      George Wood and C. Morsohauser, for the appellant.
    
      Charles A. Hopkins and G. M. Smalley, for the respondent.
   Hikschbekg, P. J.:

The judgment herein determines that the parties to the action viz., the town of East Fishkill and the town of Wappinger, both inDutchess county, are “jointly liable to build, rebuild, maintain, repair and to keep in repair” all bridges built over Sprout creek and ¿butting on each town, and that “ said towns are jointly liable-to pay the expenses therefor equally.” This determination is based upon a finding as conclusion of law “ that Sprout creek is the boundary line between the Town of East Fishkill, plaintiff, and the-Town of Wappinger, defendant, whether the line touches, and follows the water along its edge or along its west bank or in the middle-of the stream.”

The two towns referred to and the present town of Fishkill were-originally one town, known as the town of Fishkill. In the year 1849 the board of supervisors of Dutchess county divided that town by creating the town of East Fishkill from a part of it, and the division line, so far as is material to this controversy, was run as. follows: “ Thence north * * * to the north bank of the Fish-kill creek; thence east along said creek until its junction with the Sprout creek; thence up and along the west hank of said Sprout creek to the line dividing the said town of Fishkill and the town of La Grange. All that part of the said town- of Fishkill lying-east of said division line shall be constituted, a new town and known by the name of East Fishkill.” (See Laws of 1852, chap.. 411, §.l.)

In the year 1815 the Legislature formed the town of Wappinger from the then town of Fishkill, preserving the west bank of Sprout, creek as the division line between such new town and the town of East Fishkill, the description providing, so far as is material to this-controversy, that “ All - that part of the town of Fishkill (within certain designated boundaries), and runningfromthenceinastraight. line due east, to the westerly hank of Sproul creek, is hereby erected into a separate and new town, to be hereafter known and distinguished by the name of ‘Wappinger.’” (Laws of 1815,. chap. 400, § 1.)

It is clear from the courses and descriptions which have been cited that the stream known as Sprout creek is wholly within the-territory of East Fishkill; and as the boundary line between that town and the town of Wappinger is the west bank of that stream, the stream itself may properly be said to be upon the boundary of the town of East Fishkill although not constituting the boundary line between the two towns as a stream. The provisions of the Highway Law (Laws of 1890, chap. 568, as amd.) in reference to the expenses for the construction and repair of bridges are con-tained in section 130 (as amd. by Laws of 1902, chap. 321). That section provides that “the towns of this State, except as other-wise herein provided, shall be liable to pay the expenses for the construction and repair of its public free bridges, constructed over streams or other water within their bounds, and their just and equitable share of such expenses when so constructed over -streams or other waters upon their boundaries * * *; and when such bridges are constructed over streams or other waters forming the boundary line of towns, either in the same or adjoining ■counties, such towns shall be- jointly liable to pay such expenses.” .It is obvious that the statute recognizes three classes of streams; ■one- which forms a boundary line, In which case the bridges would be equally upon the soil of the adjoining towns and the expense is ■accordingly made equal; one in which the stream is “ within ” the ■bounds of a single town as distinguished from upon ” its boundary, •in which case the entire expense is to be borne by such town; and -one in which the stream although not forming the boundary line is ;still “ upon ” the boundaries of two towns in such manner that the construction of bridges would involve the soil or territory of both "towns to some extent, in which cáse the. expense is to be divided "upon just and equitable principles applied to the specific facts of -the case. I think this case, is within the last class. None of the bridges across Sprout creek has or could have been constructed Without placing a portion of the abutments and approaches in the town of Wappinger, and it may be that that town is justly and equitably liable to share equally in the expense; but it cannot be said to be so liable by force of the statute alone. As the case was ' tried and decided upon the theory ¡ that the defendant Was liable under the statute to pay one-half of the expenses of construction ■and repair or nothing, a new trial will be necessary.

The learned justice at Special Term (Town E. Fishkill v. Town Wappinger, 41 Misc. Rep. 428) was of the opinion that it was doubtful whether the words “ thence up and along the west bank of said Sprout creek •” established the line upon that bank, ' -citing the case of Gouverneur v. N. I. Co. ,(134 N. Y. 355). That case, however, only decided that in. the absence of restrictions in express words or other facts indicating a contrary intent, a grant of ' lands bounded upon a small inland ¡pond would be presumed to convey to the center. The same rulé applies- to fresh-Water streams where the boundary is described as on or along such waters. But the rule is otherwise where the boundary is expressly made the bank of a stream. (Starr v. Child, 5 Den. 599; Halsey v. McCormick, 13 N. Y. 296.) The distinction was recognized in the Houverneur Case (supra), the court saying (p. 365): A boundary line described as ‘ along the shore ’ of a fresh-water stream does not •extend the grant to its center (Child v. Starr, 4 Hill, 369), and a like construction is applicable to a boundary by the bank of such a stream. (Starr v. Child, 5 Den. 599 ; Halsey v. McCormick, 13 N. Y. 296.) In those eases the prescribed limitation of the boundary lines to the shore and bank did not permit the extension of the grant by construction to the thread of the streams. And the same may be said of People v. Jones (112 N. Y. 591).”

The judgment should be reversed.

All concurred.

Judgment reversed and new trial granted, costs to abide the event. 
      
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        People ex rel. Burnham, v. Jones.— [Rep.
     