#### Town of Queensbury, Plaintiff, *v.*The Hudson Valley Railway Company, Defendant. The People ex rel. John Blackburn, Commissioner of Highways of the Town of Moreau, Saratoga County, N. Y., Relator, *v.*The Hudson Valley Railway Company, Defendant.

(Supreme Court, Warren Special Term,

January, 1912.)

Street railways — Street railway companies, their franchises and right to use of streets.

Bridges — Establishment, erection and maintenance — Construction, repairs and use.

The franchise rights of a street railway company -to maintain and operate its lines over a truss bridge constituting a part of the highway between two towns in two counties adjoining the ends of the bridge are subject to the obligations of the public authorities to improve the highway or bridge as the public interest requires.

The street railway company is not bound to construct or maintain the bridge unless some part of the obligation of said towns and counties so to do is put upon the railway company either by statute or its franchise.

The grant of a franchise to construct and operate an electric street railway over said bridge provided that the grantee should strengthen the stringers to the amount necessary to carry safely the cars of the company and any other weight which might at the time be lawfully on the bridge, but no provision was made that the company should pay any part of the cost of repairs or restoring: Prior to the granting of the franchise the stringers were eight-inch steel beams weighing seventeen and one-quarter pounds to the foot. After, the franchise had been granted and as required thereby the company, without protest, removed the stringers from the side of the roadway of the bridge where it was abount to construct its line and substituted twelve-inch stringers weighing forty pounds to the foot. In a proceeding to determine whether the railway company must pay in full the expenses of certain repairs made upon the report, after examination of the bridge, of a civil engineer under the direction of the State Engineer,

Held: that the railway company was obligated to put the stronger stringers not only under the portion of the bridge occupied by its tracks hut under the entire roadway of. the bridge wherever necessary, the roadway being one structure and sustained *198by cross pieces running its entire width; that the cost of such stringers and the repairs is part of the expense that must be paid by the railway company; the cost of the other parts of the bridge restored must be paid by the town.

That under a provision of the franchise that the company should at its own expense keep and maintain the westerly one-half of the roadway of the bridge its obligation was a continuing one.'

That under section 9S of the Railroad Law which requires every street surface railway company, so long as it shall operate its tracks in any street or highway, to keep in repair that portion of the street between its tracks and the rails and two feet outside the tracks the railway company is required to keep the floor of the bridge in a safe and proper condition for travel.

Proceedings to determine liability for expense of repairing a bridge connecting two towns.

Jenkins, Kellogg & Barker, for town of Qneensbury.

Wm. S. Ostrander, for town of Moreau.

James McPhillip's (Lewis E. Carr, of counsel), for defendant.

Van Kirk, J.

Separate proceedings had been instituted by the two plaintiffs herein against the defendant; but, under the stipulation set forth in full in the minutes, this matter comes on to be heard. The only question presented, •is whether or not the defendant railway company must pay in full the expenses of the repairs which have been made to the bridge over which the defendant’s railroad is constructed and operated between the town of Moreau in Sara-toga county and the town of Qneensbury in Warren county. It is conceded that the defendant must pay a portion of the expenses.

The bridge in question was constructed in 1890 and was then sufficient for the traffic across it. In 1896 the highway commissioners of Qneensbury iand the highway commissioner of Moreau granted franchises to the Glens Falls, Sandy Hill and Fort Edward Street Railroad Company across the said bridge. Hnder these franchises the line was *199constructed and since has been operated. In or about 1901, by a merger of street surface railroads, the line of road and the franchises over said bridge became the property of this defendant. In 1905 it was claimed that repairs were necessary in order to strengthen the bridge. Under the direction of the State Engineer, a civil engineer, Charles F. Stowell, examined the bridge and made his report, showing the conditions and the repairs necessary to be made. These repairs have been madei, and it is the expense therefor above mentioned. The bridge is a truss bridge, resting on end piers or abutments. • The floor of the bridge is suspended" by rods running from the trusses down to cross pieces upon which rest stringers or joists, running lengthwise of the bridge and upon which the floor is placed. The floor is twenty-six feet wide; on the westerly half are the railway tracks and on the easterly the driveway. The trusses are on either side of the floor; the .sidewalks are outside the trusses. It is not claimed that, on account of any negligent or improper use of the bridge, any liability has been cast upon the defendant.

The bridge is a part of the highway. The defendant is an electric street surface railroad; and, having procured its franchise to construct and operate its line over the said bridge or highway, it has the right to so maintain and operate it under the statute and the terms of the franchise; Its rights are held subject always to the right of the public authorities to improve the highway or bridge as the public interest required. Matter of Deering, 93 N. Y. 361; People v. O’Brien, 111 id. 1. But it is not obliged to construct or maintain the highway; that obligation rested upon the two towns and two counties adjoining the ends of the bridge, unless some part of said obligation is put upon the railway company, either by statute or by the contract in the franchises.

It is claimed on the part of the'towns that there is a statutory provision (Eailroad Law, § 98) which puts this obligation upon the defendant railway company. This is the provision of the statute requiring every street surface railroad company, so long as it shall operate its tracks in any street *200or highway, to keep in repair that portion of the street between its tracks and the rails of its tracks and two feet outside of its tracks. This provision of the statute refers to 'the surface of the street. Where a street upon which the railroad is operated is paved, the railroad company is required to pave between its rails and two feet upon each side; where the street is not paved, it is required to keep the surface in repair. But the statute was not intended to require a railroad company to construct a highway, or build its foundation, or build a bridge. It may construct its line over the bridge, and under this provision it is required to' keep the floor of the bridge in a safe and proper condition for travel over it.

My attention is called to that part of section 11 of the Railroad Law, which reads as follows: “Every railroad corporation which shall build its road .along, across or upon any stream, water-course, street, highway, plank-road or turnpike, which -the route of its road shall intersect or touch, shall restore the stream or water-course, street, highway, plank-road and turnpike, thus intersected or touched, to its former state, or to such state as not to have unnecessarily impaired its usefulness, and any such highway, turnpike or plank-road may be carried by it, under or over its track, as may be found most expedient.” Our courts have said that this section applies as well to street surface and electric roads as to steam 'roads, but the portion of the section referred to was intended to apply only to crossings or to places where the line of the road- “ intersects or touches ” for a short distance the highway, not to the construction of a railroad which, practically throughout its entire length, is in the traveled part of the highway. A highway bridge, like the rest of the highway, must be constructed and maintained by the municipalities; they have a right,t through proper officers, to grant franchises to street railroads to cross such bridge, and to protect the municipalities against extra' expense by the terms of the franchise. The railroad company is bound by these terms when it accepts the franchise. If, because the railroad does cross the bridge, the company must make the bridge strong enough to hear its load and so *201maintain it, the next step in the argument is that the railroad company must provide the entire bridge; and the street .railroad companies whose lines cross the Brooklyn bridge and the Williamsburgh bridge, for instance, would have imposed upon them an enormous obligation, and one never contemplated. A street surface railroad which has constructed its line in the highway has not a route which “ intersects or touches ” the highway, within the meaning of section 11. Section 98, above referred to, is the one provision of the statute applicable to such 'construction.

There is no provision of the statute, to which my attention has been called, covering the issue here. We must, therefore, look to the franchises, which contain the following provisions:

“ *Second.*The said Company shall strengthen . the stringers of said bridge to the amount necessary to carry safely the cars of the said Company, and any other weight which may at the time be lawfully upon said bridge, and shall do the said' work in a thorough and workmanlike manner, and without unnecessarily impeding the traffic on the said bridge.

“ *Third,.*The said Company shall comply with all and every requirement of Article IV of the Bailroad Law of the State of Hew York.” (Article IV contains the provisions as to street surface railroads.)

“ *Seventh.*The said Company shall at its own expense keep and maintain the westerly.one-half of the roadway of said iron bridge. The material to be used and the time and manner in which repairs shall be made shall always be subject to the directions of the Commissioner of Highways.”

There are some other conditions in the franchises to- be complied with by the company. Whatever liability rests upon the railway company to pay the expenses for said repairs now in question rests upon it under these provisions. The provision Ho. *1*refers to the “roadway” and covers largely the same matter provided for by section 98 of the Bailroad Law; and the only provision of article IV of the Bailroad Law which -could affect the question here is said section 98. It is the second paragraph which must be con*202strued. The towns which were hound to maintain the bridge imposed as a condition to the franchises that the railway company shall strengthen the stringers of the bridge to the amount necessary to carry safely the cars of the company and any other weight which may at the time be lawfully upon said bridge. They have not made any provision that the railway company shall pay any proportion of repairs, nor that they shall pay any proportion of the cost if the bridge is rebuilt. It' is contended on the part of the towns that, when the railway company agreed to strengthen the stringers, it in fact agreed to strengthen the entire bridge. The argument is, that to put heavy stringers under the part of the bridge used by the railroad tracks would not give necessary strength to the bridge, because the stringers are supported upon the cross pieces, which in turn are suspended from the trusses and these again on the end- piers, and that, therefore, to really strengthen the bridge, it would be necessary to strengthen both the cross- pieces and the trusses. If the position taken by the towns is correct, it would mean that, whenever it was necessary to rebuild the bridge, the railway company must substantially rebuild it, excepting possibly that part of the floor of the bridge which was not used by the railroad tracks, because the strength of the bridge depends primarily upon the trusses and the abutments. The term “ stringers ” has an accepted meaning to bridge men and civil engineers; Stowell and Sute-rmeister use the term interchangeably with “joists.” It does not include cross pieces, or braces, or suspension rods running from the cross pieces to the trusses. So that, if the language used is considered according to its ordinary meaning, the railway company has 'agreed to- strengthen the stringers of the bridge; that is, the longitudinal pieces running from end to end under the floor of the bridge. We have much assistance in determining the meaning given to this clause of the franchise by the conduct of the parties immediately after the franchise was granted. Prior to the granting of the franchises, the stringers were eight-inch steel beams, having a weight of seventeen and one-quarter pounds to the foot and being sixteen feet and two inches *203long. After receiving the franchises, the railway company removed the eight-inch stringers on the westerly side of the roadway of the bridge, where it was about to construct its line, and substituted 'twelve-inch steel stringers, weighing forty pounds to the foot. This change of the stringers was made after the consents were procured and the franchises granted; and there is no claim that, at the time, any protest was made. Apparently this change in the stringers was intended to be the change required by the franchises, and it is a fair presumption that the highway commissioners of the towns knew of the changes that were made at the time. This change made by the railway company in 1896, as we understand it, is the only change that has been made up to the time of the repairs which are in question here. Although paragraph seventh of the franchises does not contain in words the provision that the railway company will continue to maintain the bridge with such stringers, it is conceded here that the obligation is a continuing one upon the railway company. The company concedes that it is obligated now to pay the cost of the stringers under their tracks. In my judgment this is the correct construction to put upon the franchises; it is in harmony with the acts of the parties immediately after the franchises were granted and is in harmony with the, ordinary meaning of the language used. The town authorities did not understand that, by granting the franchise to the railway company, they put upon the railway company the obligation of maintaining and restoring the bridge. They, must have realized that the bridge was a part of the highway and must be maintained; and, if necessary, a new bridge must be built by the municipalities, whose duty it was to maintain the highway at this place. They must also have realized that they could impose such conditions, not in conflict with the law, as they saw fit, upon the granting- of the franchises. That they did recognize these facts is shown by the fact that they did impose certain conditions on the company. It could not have been supposed by them that, when they provided that the railway company must strengthen the stringers of the bridge to the amount necessary to carry the cars and any *204other load thereon, they were putting upon it the obligation of maintaining and -keeping the bridge in sufficient strength . throughout. If such had been their intention, much simpler and plainer language could have been used. The stringers do not run as one piece of .iron the entire length of the bridge, bnt are about sixteen feet long and run from cross piece to cross piece. To replace the stringers with heavier- and stronger stringers simply strengthens the bridge between the cross pieces and under that part of the floor only supported by the heavier stringers. Putting heavier stringers, therefore, under the side of the bridge occupied by the railroad track would not strengthen the bridge under the easterly part of the roadway. The condition in the franchises is that the company shall strengthen the stringers of the bridge to the amount necessary to carry safely the cars of the company. and any other weight which may at the. time be lawfully upon the bridge; presumably upon another part of the bridge than that occupied by the railroad tracks. The railway company is obligated to put the stronger stringers not only under the portion of the bridge occupied by the tracks, but under the entire roadway of the bridge, whenever necessary; the' roadway being one structure and sustained by cross pieces running its entire width. The intent, therefore, was to put upon the defendant company a portion of the expense of maintaining the bridge, and that portion -is that it' must keep and maintain the stringers under the roadway its entire width of sufficient strength to carry the cars of the railway 'company and any other load properly upqn the bridge. The cost of such stringers in the repair© made is the part of the. expense that must be' paid by the railway company; the cost of the¡ other parts of the bridge restored, under the stipulation, must be paid by the towns.

A decision and findings will be prepared accordingly.

Ordered .accordingly.