place of any city, town or village in which it has obtained the permit required by section eighty of this article.

2. To lay their water pipes in any streets or avenues or public places of an adjoining city, town or village, to the city, town or village where such permit has been obtained.

3. To cause such examinations and surveys for its proposed water-works to be made as may be necessary to determine the proper location thereof, and for such purpose by its officers, agents or servants to enter upon any lands or waters in the city, town or village where organized, or in any adjoining city, town or village for the purpose of making such examinations or surveys, subject to liability for all damages done." (Transportation Corporations Law, § 82. Amended by L. 1892, chap. 617.)

Water pipes in public highways.—The streets of a city or village are subject to use for the purpose of supplying water to the inhabitants, and the placing of pipes therein does not impose an additional burden on the fee if such streets can be regarded as urban streets. Witcher v. Holland Water Works Co., 66 Hun. 619, 20 N. Y. Supp. 560, aff'd 142 N. Y. 626. Land in a thickly populated town, over which a public avenue is opened by legislative authority, may be used for all purposes necessary and usual to a public street in a populous place; and the owner is not entitled to additional compensation for the use of the land in laying water pipes by a company authorized by legislative authority so to act. Crooke v. Flatbush Water Works Co., 29 Hun. 245. In the case of Witcher v. Holland Water Works Co., supra, it was further held that a street in an unincorporated village is subject to use for the purpose of supplying water to the inhabitants of the village; and the use of such highways by a duly incorporated water works company does not impose an additional burden upon the fee of the street, although the water is not in actual use under any contract with the public authorities, but only by individual residents of the village who have contracted with the company. The rule as laid down in all cases is that the streets of a populous unincorporated village are to be deemed urban streets and not ordinary rural highways, in respect to the question of the easement which the necessities of the public may impose upon them. It is probable, however,

that the appropriation of a rural highway for the conveying of water to another town or village, the inhabitants along the line of the pipes not being entitled to the use of the water, is imposing an additional burden, for which the abutting owners may be entitled to compensation.

4. Construction of telegraph and telephone lines in highways.— A telegraph or telephone corporation "may erect, construct and maintain the necessary fixtures for its lines upon, over or under any of the public roads, streets and highways; and through, across or under any of the waters within the limits of this state, and upon, through or over any other land, subject to the right of the owners therof to full compensation for the same. If any such corporation can not agree with such owner or owners upon the compensation to be paid therefor, such compensation shall be ascertained in the manner provided in the condemnation law." (Transportation Corporations Law, § 102.)

Occupation of country highways by telegraph and telephone companies.-The rule is unquestionably settled in this state that the legislature cannot authorize a corporation to appropriate any portion of a rural public highway, by setting up poles therein for the purpose of supporting telegraph or telephone wires, without the consent of the abutting owners, who own the fee of such highway, or unless the right to such highway for such purpose is acquired by condemnation proceedings. Eels v. American Telephone & Telegraph Co., 143 N. Y. 133. In discussing the rights of such companies in public highways the court said: "Where land is dedicated or taken for a public purpose, the question is what are the uses implied in such dedication or taking? Primarily there can be no doubt that the use is for passage over the highway. The title to the fee of the highway generally remains in the adjoining owner and he retains the ownership of the land, subject only to the public easement. If this easement does not include the right of a telegraph company to permanently appropriate any portion of the highway, however small it may be, to its own special, continuous and exclusive use, then the defendant has no defence to the plaintiff's claim. Although the purpose of a public highway

is for the passage of the public, it may be conceded that the land forming such highway was not taken for the purpose of enabling the public to pass over it only in the then known vehicles, or for using it in the then known methods for the conveyance of property, or the transmission of intelligence. Still the primary law of the highway is motion, and whatever vehicles are used, or whatever method of transmission of intelligence is adopted, the vehicle must move and the intelligence be transmitted by some moving body which must pass along the highway, either on or over, or perhaps under it, but it cannot permanently appropriate any part of it."

There is a distinction in this respect between the streets in villages and cities, and rural public highways. In the case of a street in a thickly populated city or village the use thereof by a telegraph or telephone company may be shown to be within the limits of the public easement therein. See Johnson v. N. Y. & Pa. Telephone & Telegraph Co., 76 App. Div. 564; Castle v. Bell Telephone Co., 49 App. Div. 437.

An owner of land abutting on a public highway in a town who owns the fee to the center of the highway, may maintain an action in ejectment to compel the removal of telephone poles which a telephone company has erected therein, without obtaining the right so to do either by condemnation or by conveyance. Myers v. Bell Telephone Co., 83 App. Div. 623. Among other cases holding that the construction and maintenance of a telegraph or telephone line within the limits of a public highway is an additional burden upon the fee, not included in the original dedication are the following:-Blashfield v. Empire State Telephone & Telegraph Co., 71 Hun. 532; Metropolitan Telephone & Telegraph Co. v. Colwell Lead Co., 67 How. Pr. 365; Dusenbury v. Mutual Telegraph Co., 11 Abb. N. C. 440.

The owner of land abutting on a highway, who does not own any portion of the fee thereof, cannot compel the removal of poles erected in the highway by a telephone company, which do not cause any substantial damage to any easement of light, air or access which he has in the highway. Halleran v. Bell Telephone Co., 64 App. Div. 41.

5. Laying pipes for heating purposes in highways.-A business corporation is authorized by L. 1879, chap. 317 to lay hot water, hot air and steam pipes in the highways of towns. Such act is as follows:

§ 1. "The municipal authorities of the cities, towns and villages of the State of New York are hereby authorized and empowered to carry out the provisions of this act.

§ 2. "Any corporation or association formed or organized under the act entitled 'An act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes,' passed February seventeenth, eighteen hundred and forty-eight, or under any of the amendments to said act, or under the 'Act to provide for the organization and regulation of certain business corporations,' passed June twenty-first, eighteen hundred and seventy-five, shall have full power to manufacture, furnish, and sell such quantities of hot water, hot air, or steam as may be required in the city, town or village where the same shall be located; and such corporation shall have power to lay pipes or conductors for conducting hot water, hot air or steam through the streets, avenues, lanes, alleys, squares, and highways in such city, village or town, with the consent of the municipal authorities of said city, town or village, and under such reasonable regulations and conditions as they may prescribe; and whenever any such permission shall be granted it shall only be upon the condition that reasonable compensation shall be paid therefor, and upon a further condition that a satisfactory bond shall be given to secure the city, town or village against all damages in the use of said pipes. The amount of the compensation, and the manner of its payment, and the amount of the bond shall be first fixed and determined by said municipal authorities, before any pipes, as provided for by this act, shall be laid in any city, town, or village of this State, and that all such permissions heretofore given by any of said municipal authorities, where the above terms have been complied with, are hereby confirmed."

The acts referred to are L. 1848, chap. 40, and L. 1875, chap.

CHAPTER VII.

Turnpikes, Plank-roads and Toll Bridges.

Transportation Corporations Law, Article IX.

Section 120. Incorporation.

121. Restriction upon location of road.

122. Agreement for use of highway.

123. Application to board of supervisors.

124. Commissioners to lay out road.

125. Possession of and title to real estate.

126. Use of turnpike road by plankroad.

127. Width and construction of road.

128. Construction of bridges; obstruction of rafts prohibited.

129. Certificate of completion of road or bridge.

130. Gates, rates of toll; and exemption.

131. Toll gatherers.

132. Penalty for running a gate.

133. Location of gates and change thereof.

134. Inspectors, their powers and duties.

135. Change of route, extensions and branches.

136. Milestones, guide-posts and hoist-gates.

137. Location of office of corporation.

138. Consolidation of corporations, sale of franchise.
139. Surrender of road.

140. Taxation and exemption.

141. Hauling logs and timber.

142. Encroachment of fences.

143. Penalty for fast driving over bridges.

144. Acts of directors prohibited.

145. Actions for penalties.

146. Proof of incorporation.

147. When stockholders, to be directors.

148. Dissolution of corporation, road to be a highway.
149. Town must pay for lands not originally a highway.
150. Highway labor upon line of plank-road or turnpike.
151. Extension of corporate existence.

§ 120. Incorporation.-Five or more persons may become a corporation for the purpose of constructing, maintaining, and owning a turnpike, plank-road or a bridge, or causeway across any stream or channel of water, or adjoining bay, swamp, marsh, or water to form in connection with such bridge or causeway a continuous roadway across the same, by signing, acknowledg.: ing and filing a certificate containing the name of the corporation, its duration, not exceeding fifty years, the amount and number of shares of its capital stock, the number of its directors, and their names and the post-office address for the first year, the termini of the proposed road, its length, and each town, city or village into or through which it is to pass, or of a bridge,