Citation Numbers: 97 A.D. 7, 89 N.Y.S. 599
Judges: Hikschbekg
Filed Date: 7/15/1904
Status: Precedential
Modified Date: 1/13/2023
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 fol
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
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
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
The judgment should be reversed.
All concurred.
Judgment reversed and new trial granted, costs to abide the event.
Sic
People ex rel. Burnham, v. Jones.— [Rep.