#### TOWN OF WHEATFIELD et al. v. TONAWANDA ST. R. CO.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

Street Railroads—Construction on Bridge—Consent op Authorities.

Laws 1870, c. 291, amended by Laws 1887, c. 518, § 3, provides that the general act giving to village trustees power to make and repair bridges, etc., shall not be construed “as divesting the commissioners of highways for any town in which a bridge may be located of power or control over the same”; and where such a bridge is in question such commissioners are the “local authorities,” within Const, art. 3, § 18, providing that the construction of a street railroad shall not be authorized except with the consent of the “local authorities having the control of that portion of a street or a highway” sought to be occupied.

Appeal from special term, Erie county.

Proceeding by the towns of Wheatfield and Tonawanda against the Tonawanda Street-Railroad Company to restrain the construction of a surface railroad over a bridge across Tonawanda creek. From an order continuing an injunction, defendant appeals.

Affirmed.

Argued before LEWIS, BRADLEY, WARD, and ADAMS, J-L

Root, Orton, Baldwin & Baldwin, for appellant.

Warner & Lindsay, for respondent.

ADAMS, J.

The court at special term was undoubtedly correct in its view of the question which this case presents, and the opinion of the learned justice who presided leaves but little to be said. It may be suggested, however, by way of complement thereto, that when proper emphasis is laid upon the language of the constitution there remains scarcely any opportunity' for the contention made by the appellant’s counsel. Section 18 of article 3, which defines the powers of the legislature, provides that no law shall be passed authorizing the construction or operation of a street railroad, except upon the condition that the consent of the “local authorities having the control of that portion of a street or a highway upon which it is proposed to construct or operate such railroad be first obtained.” Now, this language clearly indicates that the framers of the constitution recognized a condition of affairs, the existence of which is well known to every one at all familiar with the highway law of this state, viz. that a “portion” of a public highway is frequently territorially within one political subdivision of the state, while the burden of its control and maintenance is imposed upon another. And such is confessedly the situation which confronts *745-the parties to this action. One-half of the bridge in question is Avithin the boundaries of the village of Tonawanda, while the other half is within the confines of the village of North Tonawanda. But the structure itself was built by the towns of Tonawanda and Wlieatfield, with some assistance from the state, and the special act under which it was built provides that the towns shall be responsible for its repair and maintenance. Laws 1867, c. 863, § 9. Subsequently it was enacted by the legislature that nothing in the general act “giving to the board of trustees of a village power to make and repair bridges within the village bounds, or making them commissioners of highways, etc., shall be construed as divesting the commissioners of highways, for any town in Avhich a bridge may be located, of power or control over the same.” Laws 1870, c. 291, as amended by Laws 1887, c. 513, § 3. It will be seen, therefore, that the control of this bridge is expressly conferred upon the plaintiffs, and, as it constitutes a “portion” of a highway over which the defendant seeks to construct and operate its road, it necessarily follows that the “local authorities” whose consent is to be obtained as a condition of such construction and operation must be the town highway commissioners. In re Rochester El. Ry. Co., 123 N. Y. 351, 356, 25 N. E. 381. The application of a simple test will determine the correctness of this conclusion. Suppose the defendant were to place some obstruction upon this bridge; could either or both of the villages, whose corporate limits extend to its center, maintain an notion therefor? Most assuredly not, because the right to maintain and control the bridge resides elsewhere, and a municipality Avhich cannot sue for or restrain the obstruction of any particular portion of a highway certainly cannot authorize the same to be used for a street railroad.

The order appealed from should be affirmed, with $10 costs and disbursements. All concur.