#### In the Matter of the Application for the Construction of a Bridge Across the Mohawk River, Connecting the Highways in the Towns of Rotterdam and Glenville, Schenectady County. Andrew Gifford, as Commissioner of Highways of the Town of Rotterdam, and Others, Appellants; Alexander Ennis and Others, Respondents.

Third Department,

September 17, 1908.

Highways — bridges over Erie canal — evidence—judicial notice as to construction of barge canal — application for construction of bridge between towns denied.

*It seems,*that under section 130 of the Highway Law, as amended by chapter 321 of the Laws of 1902, and under section 136 a bridge may be constructed across a river dividing towns where the highway in each town comes to the river bank although no such bridge has previously existed.

*55By virtue of section 115 of the Canal Law, providing that a bridge shall not be constructed .across the canal without the consent of the Superintendent of Public Works or the superintendent of repairs upon the line of the canal intersected by the road, and by section 117, providing that a town may erect and maintain a bridge with the consent and under the direction of the Superintendent of Public Works, the State has given its consent to the construction of . bridges across the canal.

The court will take judicial notice of the fact that by section 3 of chapter 147 of the Laws of 1903, as amended by chapter 740 of the Laws of 1905, the Mohawk river from Cohoes Falls to Little Falls is to be part of a barge canal, and that a bridge proposed to be constructed connecting highways in the towns of' Rotterdam and Glenville will cross a part of said Mohawk river which is to be canalized.

The court will also take judicial notice of the fact that the barge canal authorized by said statutes is actually under construction.

However, when it is not now known at what particular point between the towns of Rotterdam and Glenville the canal will pass, or what kind of a bridge should cross the river when canalized, and as it is improbable that the Superintendent of Public Works can now determine in what manner the bridge should be constructed, the court will deny an application for the construction of such bridge, with liberty to renew the same when the conditions have changed so that the questions involved may be determined.

Smith, P. J., dissented, with memorandum.

Appeal by Andrew Gifford, as sole commissioner of highways of the town of Rotterdam, and others, -from an order of the Supreme Court, made at the Warren Special Term and entered in the office of the clerk of the county of Schenectady on the 15th day of July, 1907, appointing a referee to ascertain and report the facts in connection with the building of a bridge across the Mohawk river connecting the highways in ihe towns of Rotterdam and Glenville, and also from an order entered in said.clerk’s office on the 24th day of September, 1908, amending the first above-mentioned order.

*W. W. Wemple [Alonzo P. Strong*of counsel], for the appellants.

*Henry V.*Borst, for the respondents.

Kellogg, J.:

We may assume, without deciding, that under section 130 of the Highway Law,* as amended by chapter 321 of the Laws of 1902, *56and section 136 of the Highway Law, and *Beckwith*v. *Whalen*(65 N. Y. 322S. C., 70 id. 430), and *Huggans*v. *Riley*(125 id. 88), that where a highway in each town comes to the bank of a river dividing the towns, a bridge may be constructed across the river connecting such highways, by proper proceedings under section 136 of said Highway Law, although no bridge had existed there before.

The appellants. contend that the Mohawk river is a navigable stream, and that a bridge across it cannot be established under the above provisions; that additional legislation on the part of the State, of the board of supervisors, is necessary before such action can be taken. The court will take judicial notice of the fact that by section 3 of chapter 147 of the Laws' of 1903, as amended by chapter-740 of the Laws of 1905, which was in force when this application was made, the Mohawk river from above Cohoes" Falls to Little Falls is to be a part of the Erie canal, and that such river between those points is “ canalized ” for the barge canal, so called, and that the place where the proposed bridge is to be constructed is across a . part of the Mohawk river which is canalized as a part of said Erie canal. Section 115 of the Canal Law (Laws of 1894, chap. 338) provides that a bridge shall not be constructed across the canal without first obtaining for the model and location thereof the written consent of the Superintendent of Public Works or of a superintendent of repairs upon that line of the canal which is intersected by the road or highway of which the bridge is to be a part, and section 117 provides that a town may, at its own cost, but with the consent and under the direction of the Superintendent of Public Works, erect and maintain a bridge, where there is not a State bridge, of such kind, dimensions and materials, and with such approaches as the Superintendent approves. The State, therefore, lias given its consent to the construction of bridges across the canal.

We may also take judicial notice of the fact that the barge canal, as authorized by the statute above quoted, is now actually being constructed, but it is not known at what particular point between the two towns in question it will pass, or what kind of a bridge or in what manner the bridge should cross the river when canalized-. And it would seem that an investigation as to the necessity and propriety of á bridge at this time would be without profit to the towns, and that probably the Superintendent of Public Works could *57not now determine in what manner or how such bridge should be constructed. It is evident that at this time no approximate estimate can be made of the probable cost and’expense of such construction, and the expense may be a material fact for consideration by the court in determining the necessity and propriety of such bridge. The court will not order such bridge to be constructed until it knows the probable expense, and is able to determine whether it is an expense which the towns may fairly be called upon to bear.

I think, therefore, the Special Term should have denied the application upon the ground that it is not practicable now'to construct such a bridge, or determine the necessity or' propriety of its construction, with liberty to renew the application when conditions have changed so that such questions may properly be determined. The order should, therefore, be reversed and the application denied.

All concurred, except Smith, P. J., dissenting in memorandum; Cochrane, J., concurred in result.

*

.Laws of 1890, chap. 568.— [Rep.

Smith, P. J. (dissenting):

The order appealed from simply directs a reference to ascertain the facts upon which the action of the court is to be determined. 'The opinion of Mr. Justice Kellogg seems to me improperly to assume that the location of the bridge could not now be determined and the expense approximated and the written consent of the Superintendent of Public Works to its construction obtained. ■ I think the reference was properly directed to ascertain the exact situation for the guidance of the court in any subsequent application.

Orders reversed and application denied, with privilege to renew. as stated in opinion.