Opn. No. ( 1981 )

Anthony G. Maccarini, Esq. Department of Law, Putnam County

You have asked who has responsibility for inspection and maintenance of the Kittridge Road Bridge, which was privately built in 1930. It spans the West Branch of the Croton River in the Town of Kent, Putnam County.

The first part of your question is answered in Highway Law, § 231 (1): Inspections of bridges not on the approved State system of highways are to be made by the county superintendent of highways under standards prescribed by the State Commissioner of Transportation.

The second part of your question is resolved by Highway Law, § 189. Section 189 sets up a two-prong test. A private road becomes a "highway by use" if it has been used "by the public as a highway for the period of ten years or more." Case law adds the second prong of the test: the town must exercise control and maintain the highway (Goldrich v Franklin Gardens Corp, 2 A.D.2d 752 [2d Dept, 1956], affd 2 N.Y.2d 906 [1957], no opinion).

The Kittridge Road Bridge is considered a part of the highway on which it is located. Highway Law, § 219. The facts regarding this bridge were initially in dispute. When the State inventoried the bridge as a "Town owned and maintained structure" (letter from H.I. Ginsberg, Associate Civil Engineer of the New York State Department of Transportation, December 18, 1980), the town disputed this attribution, claiming that they had not built the bridge. The town does admit, however, that it plows the bridge during the winter (letter from John A. Porco, February 20, 1981). It is obvious that plowing the bridge is part of the regular plowing of the highway.

Since it is undisputed that the public has continuously used the bridge since its private construction in 1930, the first prong of the section 189 test is met. The second prong is met by the routine snow plowing done by the town for school buses and oil trucks that use the highway and bridge on a regular basis. Acceptance of dedication is a question of fact and involves the intention of the acceptor, evidenced by acts and conduct (Smith v Town of Sandy Creek, 12 Misc.2d 916, 919 [Sup Ct, Oswego Co., 1958]). We have pointed out recently that there is no statutory authority for a municipality to provide snow removal from private roads even if the users offer to pay for the removal (informal opinion of June 9, 1980, copy enclosed). We do not assume that the intention of the Town of Kent has been to provide snow removal to the property owners using a private highway.

On the facts presented, the Kittridge Road Bridge is located on a private road that has become a "highway by use" under Highway Law, § 189. Therefore, the Town of Kent must accept responsibility for the bridge and provide repairs and maintenance as detailed in Highway Law, § 231 (5).