CHAPTER IV.

STATE ROADS.

1. Higbie-Armstrong Act. (L. 1898, chap. 115.)

2. Right of way. (L. 1901, chap. 240.)

1. Higbie-Armstrong Act.

L. 1898, ch. 115.—An Act to Provide for the Improvement of the Public Highways.

§ 1. Resolution of needed improvements.-The board of supervisors in any county of the state may, and upon presentation of a petition as provided in section two hereof, must pass a resolution that public interest demands the improvement of any public highway, or section thereof situate within such county, and described in such resolution, but such description shall not include any portion of a highway within the boundaries of any city or incorporated village, and within ten days after the passage of such a resolution shall transmit a certified copy thereof to the state engineer and surveyor.

§ 2. Petition of land owners.-The owners of a majority of the lineal feet fronting on any such public highway or section thereof in any county of the state may present to the board of supervisors of such county a petition setting forth that the petitioners are such owners and that they desire that such highway or section thereof be improved under the provisions of this

act.

3. Investigation and approval by state engineer.-Such state engineer upon receipt of such resolution shall investigate and determine whether the highway or section thereof sought to be improved is of sufficient public importance to come within the purposes of this act, taking into account the use, location and value of such highway or section thereof for the purposes of common traffic and travel, and after such investigation shall certify his approval or disapproval of such resolution. If he shall disapprove such resolution, he shall certify his reason therefor to such board of supervisors.

§ 4. Maps; width of road.—If he shall approve such resolution, such state engineer shall cause the highway or section thereof therein described to be mapped out both in outline and profile. He shall indicate how much of such highway or section thereof may be improved by deviation from the existing lines whenever it shall be deemed of advantage to obtain a shorter or more direct road without lessening its usefulness or wherever such deviation is of advantage by reason of lessened gradients. He shall also cause plans and specifications of such highway or section thereof to be thus improved to be made for telford, macadam or gravel roadway or other suitable construction, taking into consideration climate, soil and materials to be had in the vicinity thereof and the extent and nature of the traffic likely to be upon such highway, specifying in his judgment the kind of road a wise economy demands. The improved or permanent roadway of all highways so improved shall not be less than eight feet nor more than sixteen feet in width unless for special reasons to be stated by such state engineer it is required that it shall be of greater width. He shall if requested by the resolution include provision for steel plate or other flat rail construction in double track.

§ 5. Estimate of cost.-Upon the completion of such maps, plans and specifications such state engineer shall cause an estimate to be made of the cost of construction of the same and transmit the same to the board of supervisors from which such resolution proceeded, together with a certified copy of such maps, plans and specifications, and of his certificate of the approval of the highway or section thereof so designated as aforesaid.

§ 6. Resolution by supervisors to construct.-After the receipt thereof upon a majority vote of such board of supervisors, it may adopt a resolution that such highway or section thereof so approved shall be constructed under the provisions of this act, or any existing act, and thereupon shall transmit a certified copy of such resolution to such state engineer, who is hereby authorized, empowered and directed to proceed with the construction of said highway in the order provided by section

of

eleven. When a board of supervisors has once adopted the resolution approving the plans and specifications of the state engineer and directing the raising of money for the county's share of the expense, no resolution thereafter adopted by such board shall have the effect of rescinding or annuling such prior resolution. This section shall apply in all respects to any county which may hereafter by a resolution of its board of supervisors rescind or attempt to rescind a resolution approving the plans and specifications of the state engineer for the construction of a highway under the provisions of this act. In the case of any highway which divides two or more counties, such resolution must be separately adopted by each county within which a portion of such highway lies; and the date of the receipt by the state engineer of a certified copy of the resolution passed by the board of supervisors last approving such plans, shall determine its place upon the list of roads to be taken up for construction as provided by section eleven of this act. (Amended by L. 1904, chap. 612.)

§ 7. Acquisition of right of way.-In case the boundaries of such proposed highway shall deviate from the existing highway, the board of supervisors must make provision for securing the requisite right of way prior to the actual commencement of the work of improvement.

§ 8. Contract, award, etc.-Upon receipt of the certified copy of the resolution, provided in section six, such state engineer shall advertise for bids for two successive weeks in a newspaper published at the county seat of such county, and in such other newspaper as shall be deemed of advantage for the construction of such highway or section thereof, according to such plans and specifications, and award such contract to the lowest responsible bidder, except that no contract shall be awarded at a greater sum than the estimate provided in section five. A board of supervisors of a county, or a town board of a town in which any portion of such highway lies may offer bids and be awarded such contracts for and on behalf of their respective counties and towns. But if no bid otherwise acceptable to be made within such estimate, such state engineer may amend his estimate, cer

tify the same to the board of supervisors, and upon the adoption by it of a resolution as provided in section six based on such amended estimate, proceed anew to obtain bids and award the contract as herein provided. Such engineer may reject any or all bids, and before entering into any contract for such construction, he shall require a bond with sufficient sureties, conditioned that if the proposal shall be accepted the party thereto will perform the work upon the terms proposed and within the time prescribed and in accordance with the plans and specifications; and as a bond of indemnity against any direct or indirect damages that shall be suffered or claimed during the construction of such road and until the same is accepted. The people of the state of New York shall in no case be liable for any damages suffered. Partial payments may be provided for in the contract, and paid in the manner herein provided when certified to by such state engineer to an amount not to exceed ninety per centum of the value of the work done; ten per centum of the contract price shall be retained until the entire work has been accepted. (Amended by L. 1903, chap. 4, and L. 1904, chaps. 51 and 608.)

9. Cost of construction.-One-half of the expense of the construction thereof shall be paid by the state treasurer upon the warrant of the comptroller, issued upon the requisition of such engineer, out of any specific appropriations made to carry out the provisions of this act. And one-half of the expense thereof shall be a county charge in the first instance, and the same shall be paid by the county treasurer of the county in which such highway or section thereof is, upon the requisition of such engineer, but the amount so paid shall be apportioned by the board of supervisors, so that if the same has been built upon a resolution of said board without petition, thirty-five per centum of the cost of construction shall be a general county charge; and fifteen percentum shall be a charge upon the town in which the improved highway or section thereof is located, and if the same has been built upon a resolution of said board after petition as provided in section two, thirty-five per centum shall be a general county charge and fifteen per centum shall be assessed upon and paid by the owners of the lands benefited

in the proportion of the benefits accruing to said owners as determined by the town assessors in the next section hereof.

§ 10. Duty of assessors.-The town assessors of any town in which any highway or section thereof has been improved or constructed pursuant to petition as provided in section two of this act, shall have power and it shall be their duty upon receiv ing notice from the board of supervisors of the county in which said town is located, of the cost of construction or improvement of such highway or section thereof in such town, to assess an amount equal to fifteen per centum of said total cost upon the lands fronting or abutting on such highway or section thereof. Such assessment shall be apportioned according to the benefits accruing to the owners of the lands so located, according to the best judgment of said assessors, upon at least ten days' notice of the time and place of such apportionment to the persons affected thereby, and after such persons have had an opportunity to be heard; and the assessments so made when duly attested by the oaths of such assessors shall be collected in the same manner as the general taxes of such town are collected. (Amended by L. 1899, chap. 92.)

§ 11. Order of construction.-The construction and improvement of highways and sections thereof, under the provisions of this act, shall be taken up and carried forward in the order in which they are finally designated, as determined by the date of the receipt in each case of the certified copy of the resolution provided in section six by such engineer as herinbefore provided. But no highway shall be placed upon the list of highways to be constructed nor receive a consecutive number on such list unless the resolution provided by section six shall also appropriate and make immediately available for the state engineer for the construction of such highway, as provided by section nine, the county's half of the cost of the improvement of such highway. (Amended by L. 1904, ch. 299.)

§ 11-a. Right to close highway during construction.-Whenever a contract has been let for the construction of any such highway in accordance with the provisions of this act, the con