As to rights, duties and liabilities of turnpike, plank road, and toll-bridge corporations, see Transportation Corporations Law, §§ 122-150, post p

Complaint that a toll-bridge is unsafe for the public use may be in form following:-

L. M., being duly sworn, complains on oath to the commissioners of highways of the town of in the county of

.....

situated

that he believes the toll-bridge belonging to on the (give name of stream), at (describe place), has become and is unsafe for public use and travel; and that the reasons for his belief are as follows (set forth reasons).

Subscribed and sworn to before me,

L. (M.

this..... day of

Notice to owners of toll-bridge as to unsafe condition thereof may be in the following form:

FORM NO. 20.

Notice to Owners of Toll-Bridge.

To (owners or agent of the owners, as the case may be).

You are hereby notified that the commissioners of highways of the town of in the county of

have, on com

plaint made, carefully and thoroughly examined the toll-bridge situated on the ......, at (describe the situation), and found it to be unsafe for public use and travel. (State briefly wherein it is unsafe.)

§ 14. Drainage, sewer and water pipes in highways.-The commissioners of highways may upon written application of any resident of their town, grant permission to lay and maintain drainage, sewer and water pipes and hydrants under ground, within the portion therein described, of any highway within the town, but not under the traveled part of the highway, except across the same, for the purposes of sewerage, draining swamps or other lands and supplying premises with

water, upon condition that such pipes and hydrants shall be so laid as not to interrupt or interfere with public travel upon the highway. The consent of the commissioner shall be executed in duplicate, signed by him and indorsed with the written approval of the supervisor and the acceptance of the applicant, and one of such duplicates shall be delivered to the applicant and the other filed with the town clerk. The consent shall also contain a provision to the effect that it is granted on the condition that the applicant will replace all earth removed, and leave the highway in all respects in as good condition as before the laying of said pipes; that the applicant will keep such pipes and hydrants in repair and save the town harm less from all damages which may accrue by reason of their locaton in the highway; that upon notice by the commissioner, the applicant will make any repairs required for the protection or preservation of the highway; that upon his default such repairs may be made by the commissioner at the expense of the applicant, and that such expense shall be a lien prior to any other lien upon the land benefited by the use of the highway for such pipes or hydrants; and that the commissioner may also, upon the applicant's default, revoke the permission for the use of the highway, and remove therefrom such pipes or hydrants. (Amended by L. 1897, chap. 204.)

Use of highways by public corporations, see chap. V., post. A water works company organized pursuant to section 80 of the Transportation Corporations Law may, upon obtaining the permit of the town board authorizing the formation of such company for the purpose of supplying the town with water, lay and maintain its pipes and hydrants in the highways of the town in which such permit is secured. See Transportation Corporations Law, § 82. Pipe line corporations may construct pipe lines along public highways with the consent of the commissioners of highways of the town. See Transportation Corporations Law, § 45.

Gas and electric light corporations may, with the consent of the town board, lay gas pipes and electric conduits in the

streets and highways of the town. Transportation Corporations Law, § 61.

A contract between a water works company and a town for the furnishing of water for the use thereof, and of its inhabitants, which contained a provision that the company's pipes should be laid under the supervision of the commissioners of highways, their services to be paid for by the company, is not invalid because of the clause requiring payment of compensation of such commissioners by the company. Such a provision is questionable,however, and requires close scrutiny by the courts; the burden, in such a case, is upon the company to show that the contract is just and fair, and has been justly and fairly carried out. Slight evidence of improper or unfair execution of duty upon the part of the commissioners, or of a failure to perform the contract by the company would require a finding of a fraudulent motive for its insertion. Nicoll v. Sands, 131 N. Y. 19.

Application to lay water pipes in highways, and the consent of the commissioners may be in the following form:

FORM NO. 21.

Application to Lay Water Pipes in the Highway.

To the Commissioners of Highways in the Town of the County of

....

in

The undersigned, an inhabitant of the said town of .... does hereby make application to you for permission to lay and maintain water pipes and hydrants (or drainage or sewer pipes) under ground, within the highways of said town, pursuant to section 14 of the highway law, as follows: (Here state where the pipes are proposed to be laid.)

Dated this

day of

FORM NO. 22.

19....

L. M.

Consent to Lay and Maintain Water-Pipes in Highway. The undersigned, commissioners of highways of the town of in the county of on the written application of L. M., do hereby consent that the said L. M. lay and maintain water-pipes and hydrants (or drainage and sewer-pipes) under ground within the highways of said town as follows: (Here state where the pipes are to be laid.) Subject, however, to the following conditions:

That the said L. M. will replace all earth removed, and leave the highway in all respects in as good condition as before the laying of said pipes; that he will keep such pipes (and hydrants) in repair and save the town harmless from all damages which may accrue by reason of their location in the highway; that upon notice by the commissioners the applicant will make any repairs required for the protection and preservation of the highway; that upon his default, such repairs may be made by the commissioners at the expense of the said L. M., and that such expense shall be a lien prior to any other lien upon the land benefited by the use of the highway for such pipes or hydrants; and

the commissioners of highways of such town may, upon the default of the said L. M., his assigns or legal representatives, revoke this consent and remove therefrom such pipes or hydrants. Dated this

day of

19....

A. B.,

C. D.,
E. F.,

Commissioners of Highways.

I, the undersigned, supervisor of the said town of hereby approve of the foregoing consent to L. M.

do

G. H., Supervisor.

I, the undersigned, applicant above mentioned, do hereby consent to conditions contained in the foregoing consent.

La M.

§ 15. Actions for injuries to highways.-The commissioners of highways may bring an action, in the name of the town, against any person or corporation, to sustain the rights of the public in and to any highway in the town, and to enforce the performance of any duty enjoined upon any person or corporation in relation thereto, and to recover any damages sustained or suffered or expenses incurred by such town, in consequence of any act or omission of any such person or corporation, in violation of any law or contract in relation to such highway.

Actions brought by commissioners of highways or other town officers must be in the name of the town. See Town Law, $182.

Injuries to highways.-Any person who shall injure any highway or bridge maintained at the public expense is liable to treble damages. Highway Law, § 153, post. Penalties or forfeitures prescribed by the Highway Law are to be recovered by the commissioners of highways in the name of the town, Highway Law, § 164, post.

Restoration of highway by railroad.-A railroad corporation which for the purposes of its railroad injures or interferes with a highway must restore such highway to its former state, or to such state as not to unnecessarily impair its usefulness. Railroad Law, § 11, post. The provisions of such section of the Railroad Law imposing upon a railroad company the duty to restore the hghway "to its former state, or to such state as not unnecessarily to impair its usefulness," does not relieve commissioners of highways from the care, and control of those

parts of the public highways constituting approaches to railroad crossings, although constructed by the railroad company in discharge of its statutory duty. The commissioners are authorized to institute proceedings to compel the company to fully perform this duty, or when it is in default, they may proceed and do the necessary work, and maintain an action against the company for the expense. Bryant v. Town of Randolph, 133 Ñ. Y. 70. Where a railroad fails to comply with its statutory duty in this respect the remedy is provided by the above section, but such remedy is not exclusive and does not supersede common law remedies, and the railroad company may be proceeded against by mandamus, or by indictment for maintaining a nuisance. People v. N. Y. C. & H. R. R. Co., 74 N. Y. 302; People ex rel Green v D. & C. R. R. Co., 58 N. Y. 153.

The intention of the statute is to impose upon a railroad company, whose track is upon an original highway, the duty of maintaining the restored, as well as of restoring the original highway, at least so far as affected by its own operations, and so long as changes are made therein by the railroad, or occur in consequence of its operation, which affect the safety of the highway, the statutory duty to preserve the usefulness of the highway attaches and remains until fully complied with. Allen v. Buffalo, Rochester & Pittsburgh Ry. Co., 151 N. Y. 434.

While the commissioner cannot dictate how the work of restoring the highway should be accomplished by the railroad company, the duty imposed upon the company to restore is "a corporate duty" which the company is bound to perform, and for any failure in its performance, in addition to other remedies, the commissioner of highways is authorized by chapter 255 of the Act of 1855, (revised and now contained in the above section) to maintain an action to enforce the performance, or for damages sustained by the town from non-performance. Post v. West Shore & Buffalo R. R. Co., 123 N. Y. 587. The duty imposed to restore is a continuous one and cannot be barred by any statute of limitations. Hatch v. Syracuse, B. & N. Y. R. R. Co., 24 N. Y. St. Rep. 36. The case of Town of Windsor v. D. & H. C. Co., 92 Hun. 127, was an action commenced in June, 1892, in the name of the town by the commissioner of highways thereof, to enforce the rights of the public in a highway; it appeared that the highway in question had been laid out about the year 1814, and that the defendant, a railroad corporation, about the year 1871, had by the construction of an overhead crossing narrowed the highway so that