SECOND DEPARTMENT, JULY, 1904. [Vol. 97. In 1875 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 that "All that part of the town of Fishkill (within certain designated boundaries), and running from thence in a straight line due cast, to the westerly bank of Sprout creek is hereby erected into a separate and new town, to be hereafter known and distinguished by the name of Wappinger." Held, that Sprout creek is wholly within the town of East Fishkill, and, although it does not constitute the boundary line, is included within the expression "streams or other waters upon their boundaries," contained in section 130 of the Highway Law (Laws of 1890, chap. 568, as amd. by Laws of 1902, chap. 321), which provides: "The towns of this State, except as otherwise herein provided, shall be liable to pay the expenses for the construction and repair of its public free bridges, constructed over streams or other water within their bounds, and their just and equitable share of such expenses when so constructed over streams or other waters upon their boundaries *; and when such bridges are constructed over streams or other waters forming the boundary line of towns, either in the same or adjoining counties, such towns shall be jointly liable to pay such expenses." * * That consequently the towns of East Fishkill and Wappinger were to bear a "just and equitable share" of the expense of building a bridge across Sprout creek and not necessarily one-half thereof. APPEAL by the defendant, the Town of Wappinger, from a judg. ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 22d day of October, 1903, upon the decision of the court rendered after a trial at the Dutchess County Special Term. George Wood and C. Morschauser, for the appellant. Charles A. Hopkins and C. M. Smalley, for the respondent. HIRSCHBERG, P. J.: The judgment herein determines that the parties to the action viz., the town of East Fishkill and the town of Wappinger, both in Dutchess county, are "jointly liable to build, rebuild, maintain, repair and to keep in repair" all bridges built over Sprout creek and abutting 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 App. Div.] lows the water along its edge or along its west bank or in the middle of the stream." * 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 Fishkill creek; thence east along said creek until its junction with the Sprout creek; thence up and along the west bank 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, 1.) In the year 1875 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 running from thence in a straight line due east, to the westerly bank of Sproul* creek, is hereby erected into a separate and new town, to be hereafter known and distinguished by the name of Wappinger.'" (Laws of 1875, chap. 400, § 1.) 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 contained in section 130 (as amd. by Laws of 1902, chap. 321). That section provides that "the towns of this State, except as otherwise herein provided, shall be liable to pay the expenses for the SECOND DEPARTMENT, JULY, 1904. [Vol. 97. construction and repair of its public free bridges, constructed over streams or other water within their bounds, and their just and equitable share of such expenses when so constructed over streams or other waters upon their boundaries * * * *; and when such bridges are constructed over streams or other waters forming the boundary line of towns, either in the same or adjoining counties, such towns shall be jointly liable to pay such expenses.' It is obvious that the statute recognizes three classes of streams; one which forms a boundary line, in which case the bridges would be equally upon the soil of the adjoining towns and the expense is accordingly made equal; one in which the stream is "within" the bounds of a single town as distinguished from "upon" its boundary, in which case the entire expense is to be borne by such town; and one in which the stream although not forming the boundary line is still "upon" the boundaries of two towns in such manner that the construction of bridges would involve the soil or territory of both towns to some extent, in which case the expense is to be divided upon just and equitable principles applied to the specific facts of the case. I think this case is within the last class. None of the bridges across Sprout creek has or could have been constructed without placing a portion of the abutments and approaches in the town of Wappinger, and it may be that that town is justly and equitably liable to share equally in the expense; but it cannot be said to be so liable by force of the statute alone. As the case was tried and decided upon the theory that the defendant was liable under the statute to pay one-half of the expenses of construction and repair or nothing, a new trial will be necessary. 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 rule 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 App. Div.] bank of a stream. (Starr v. Child, 5 Den. 599; Halsey v. MeCormick, 13 N. Y. 296.) The distinction was recognized in the Gouverneur Case (supra), the court saying (p. 365): "A boundary line described as 'along the shore' of a fresh-water stream does not extend the grant to its center (Child v. Starr, 4 Hill, 369), and a like construction is applicable to a boundary by the bank of such a stream. (Starr v. Child, 5 Den. 599; Halsey v. McCormick, 13 N. Y. 296.) In those cases the prescribed limitation of the boundary lines to the shore and bank did not permit the extension of the grant by construction to the thread of the streams. And the same may be said of People v. Jones* (112 N. Y. 597).” The judgment should be reversed. All concurred. Judgment reversed and new trial granted, costs to abide the event. EUNIE L. WHITING, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant. Negligence-injury to a passenger from the fall of a satchel from a rack in a rail road car. In an action brought to recover damages for personal injuries, it appeared that the plaintiff with three companions boarded one of the defendant's fast trains; that one of the plaintiff's companions, without assistance, placed a large satchel belonging to her in a rack along the side of the car, and near the top thereof; that the plaintiff saw the satchel placed in the rack and noticed that it projected over the top thereof; that while the train was in motion the satchel fell upon the plaintiff's head injuring her. There was no evidence tending to indicate that the satchel was insecurely placed in the first instance, or that at any time before it fell there was anything in its position to indicate that it was likely to fall. The fall of the satchel was not occasioned by any sudden or unusual motion of the car, but by the gradual displacement of the satchel through the ordinary and usual motion of a fast train. Held, that a judgment entered upon a verdict in favor of the plaintiff should be reversed; That with respect to the situation, created by the presence of the satchel in the rack, the defendant was only obliged to use reasonable care, and that the facts did not warrant the submission of the question of the defendant's negligence to the jury. *People ex rel. Burnham v. Jones. - [REP. SECOND DEPARTMENT, JULY, 1904. [Vol. 97. APPEAL by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of June, 1903, upon the verdict of a jury for $1,500, and also from an order entered in said clerk's office on the 18th day of September, 1903, denying the defendant's motion for a new trial made upon the minutes. Robert A. Kutechbock, for the appellant. John E. O'Brien, for the respondent. HIRSCHBERG, P. J.: The plaintiff has recovered a judgment for injuries sustained from the fall upon her of a telescope satchel from a rack on the side of the car, while she was a passenger on the fast train known as the Empire State Express, on June 29, 1900. The allegation of negligence in the complaint is as follows: "That at the time the plaintiff was received as a passenger aforesaid upon the train of the defendants, the said defendants were negligent and careless in the management and operation of the said train, in that they permitted and allowed a certain large satchel to be placed in the rack along the side of said car near the top in an unsafe and dangerous position, while said train was being moved at great speed and said car was being violently swayed and agitated." The evidence produced upon the trial failed to establish the negligence thus alleged, and the plaintiff's recovery, therefore, cannot be sustained. On the day named the plaintiff was journeying from the city of New York to Utica in company with her room-mate, Miss Grace Mason, and two Misses Crafts. The satchel was a large one belonging to Miss Mason, was completely filled, and was carried to the car by her, and by her placed in the rack in the plaintiff's presence. The plaintiff saw her place it in the rack and noticed that it projected over the edge, what she first said was "a few" inches, but finally thought as much as six or seven inches. The appearance of the satchel as placed in the rack did not seem to suggest danger to the plaintiff, who sat at the commencement of the journey in the seat directly behind it, over which the rack projected. Miss Mason sat next the window in the seat in front of the plaintiff, with one of the Miss Crafts by |