approval of the fiscal supervisor The fiscal supervisor and the board of managers or trustees shall determine to what extent and for what length of time advertisements are to be inserted in news. papers for proposals for the erection, alteration, repairs or improvements of buildings or plant of state charitable institutions A preliminary deposit or certified. check * * shall in all cases be required as an evidence of good faith upon all proposals from conin an amount to be determined by * shall contain a clause tractors for such work the state architect. All such contracts * that the contract shall only be deemed executory to the extent of the moneys available and no liability shall be incurred by the state beyond the moneys available for the purpose. All contracts in an amount greater than one thousand dollars shall have the performance thereof secured by sufficient bond or bonds to be approved by and filed with the comptroller. All work done by special orders in an amount less than one thousand dollars need have no surety bond, provided payment is to be made only after the work is completed and approved No item of an appropriation made for the performance of such work shall be available except for advertisement unless one or more contracts, special orders or special fund estimates shall first have been made for the completion of such work within the appropriation therefor." * * The papers accompanying your communication show that the provision of the foregoing statute, relative to plans and specifications and the advertising for proposals have been complied with, though the plans and specifications furnished by the State Architect were for the whole of the work on both cottages, without provision for either separately, except as the proposals for such work might be divided. Bids for such work were received from various bidders, but all were rejected on the ground that such bids were far beyond the appropriations made for such work. It also appears that the State Architect, in accordance with the suggestion of C. W. Winspear, the superintendent of your institution, and of Mr. Dey, of the board of managers, requested the bidders to divide their propositions, which they did. From such division it appears that it would cost for the construction, heating, plumbing and electric work on Cottage E, $4,630. Your request is, "Can this amount of $4,630 be used for the completion of work on Cottage E and the balance left for work to be done on Cottage F?" The provisions of the statute (supra), making such appropriations, expressly provide that the work shall be done pursuant to section 49 of the State Charities Law. The latter section expressly provides that "no item of appropriation made for the performance of such work shall be available, except for advertising, unless one or more contracts, special orders or special fund estimates shall first have been made for the completion of such work within the appropriation therefor." It was, therefore, incumbent, 1. That a contract or contracts should be made and entered into for the performance and completion of the work on Cottages E and F. 2. That such contract or contracts should be made for an amount within the appropriations made for same. The amount appropriated for finishing the attics of Cottages E and F is $2,000, and for alterations and repairs to Cottage E, is $3,000. The work, it appears from the bids received, cannot be done for the amounts appropriated; consequently, no contracts have been made. You cannot, in my judgment, apply so much of the appropriations made for both cottages as will enable you to complete the work on Cottage E. Your remedy is to apply for an additional appropriation which will be sufficient to have both cottages completed, which step you state has already been taken. I return to you the papers accompanying your inquiry. WILLIAM S. JACKSON. State institutions cannot construct telephone lines underneath railroads, except where such railroads cross highways, without consent of such railroads. STATE OF NEW YORK, Hon. C. M. BISSELL, State Fiscal Supervisor, Albany, N. Y.: DEAR SIR. Yours inclosing copy of letter received by you from Mr. F. H. Briggs, Superintendent of the State Agricultural and Industrial School, Industry, N. Y., relative to the Erie Railway Company refusing to allow that institution to connect its telephone lines across the company's tracks between Farm "C" and Haneayah Colonies, between the service cottage and the ad ministration building, unless it is paid a license fee of $20, is received. I have also received a letter from Mr. John D. Burns, who signs same as Committee of Board of Managers, and which relates to the same subject. In his letter Mr. Burns claims that the telephone wire can be carried underground below the tracks in the highway where the railroad crosses said highway, and that it is possible it might be necessary to dig a small trench in which to lay a conduit. In my opinion you have no right to connect or attempt to connect such wires by carrying same underneath the tracks of such railroad without the letter's permission or consent. Such railroad company is, excepting where it crosses highways, plankroads, turnpikes, etc., the owner of the property upon which its tracks are laid, and therefore it would be necessary to get its permission or consent before you would be justified or authorized to enter upon its private property for the purpose of doing the work in question. But if the wires are to be carried underground below the tracks in the highway, such railroad company cannot prevent it nor are they entitled to any compensation therefor. It has no control over such highway, though the statute permits it to construct its road across the same. By the provisions of the Railroad Law (Laws 1890, chapter 565), subdivision 5 of section 4, a railroad is authorized and permitted "to construct its road across, along or upon any stream, water-course, highway, plank-road, turnpike, or across any of the canals of the State, which the route of its road shall intersect or touch." Therefore, where the tracks of a railroad com pany are laid through or across a public highway, such company does not by virtue thereof own the land beneath said tracks. It is vested the same as the general public is vested, with what may be termed a public easement therein, that is, the right to the use of said highway for public travel. The care and control of highways in cities, towns and villages, is vested in the proper authorities of such cities, towns and villages, who alone are author ized and empowered to give the necessary consents and permissions in matters relating to or affecting such highways. The institution in question has, in my opinion, the right, upon receiving the necessary permission and consent from the proper town officials, to carry underground below the tracks in the highway the wires so as to connect its telephone lines with the different branches of the institution named. In addition to the institution having such right, the telephone company now operating in said town has also the right to do the same under the provisions of the Transportation Corporations Law (Laws 1890, chapter 566, § 102). (The People ex rel. The Monticello Tel. Co. v. The Board of Trustees, etc., 35 Misc. Rep. 675; Village of Carthage v. Central New York Tel. Co., 110 App. Div. 631.) Yours truly, WILLIAM S. JACKSON, Water supply for New York State Custodial Asylum for the Feeble-Minded Women at Newark, New York; easements construed; right to substitute eight-inch pipe for existing six-inch pipe without additional compensation. FACTS. In June, 1904, the State of New York acquired title to a parcel of land of 0.480 acres from Eben Lake and Lydia A. Lake, his wife, in the town of Arcadia, Wayne County, N. Y., upon which there was a spring, "together with perpetual right of way to lay, maintain, operate, repair and remove pipe lines across premises of the parties of the first part (Eben Lake and Lydia A., his wife), for conveying water from the spring located upon the above described premises, provided that the party of the second part (the State of New York) shall pay for all crops or damages in repairing such pipe lines. The party of the first part (Eben Lake and Lydia A., his wife) reserves the right to the use of water from the said spring as may be necessary for farm and stock purposes," and the said Eben Lake and Lydia ., his wife, covenanted "that the party of the second part (the State of New York) shall quietly enjoy the said premises and all the rights, benefits and privileges now vested in the said party of the first part as relates to the spring of water upon the premises, its source or supply." Thereafter the Board of Managers of the New York State Custodial Asy. lum for Feeble-Minded Women at Newark, acting for and on behalf of the State of New York, secured from John W. Johnson and Mary Johnson, his wife, owners, and from Harriet Benton, Frances B. Hull and Harriet B. Bellamy, executors of the last will and testament of John W. Benton, deceased, mortgagees, Adelbert B. Couse, unmarried, owner, Jacob Pelis and Minnie Pelis, his wife, owners, Magdalena Brubacker, mortgagee, Elizabeth Stever, and Sarah C. Fitch, owners, and O. H. Allerton and Sarah Allerton, his wife, owners, grants of an easement in the following language: "Does hereby grant to the party of the first part in perpetuity the right to lay, maintain, operate, repair and remove pipe lines over and through their (his) lands in the Town of Arcadia, County of Wayne, State of New York, described as follows: As shown by map of survey of proposed pipe line from New York State Custodial Asylum, Newark, Wayne County, New York, to Springs on the farm of Eben Lake, made by Charles L. Kelley, March 26, 1904; (there are five of these grants and the descriptions in all five taken together begin at Station 1+08 of said survey and continue to Station 51+20, being a strip of 5,067 feet in length); all pipe laid under this grant to be buried to such depth as not to interfere with the cultivation or proper drainage of said land. "It is further mutually agreed and understood that if the said pipe line shall be abandoned for a period of five years at any time, this agreement shall cease and become null and void. The said party of the second part also hereby agrees for themselves (himself) their (his) heirs, executors, administrators, successors or assigns, that the said party of the first part may re-enter upon the said premises at any time after the said pipe line has been laid as may be necessary for the purpose of operating or repairing the same, providing that all damages, if any occur, shall be paid for as may be then deter mined." All of said grants were duly executed and acknowledged by the grantors and all were duly recorded January 13, 1905, in Wayne county clerk's office. The map referred to shows a line indicating the proposed location of a sixinch pipe line. Thereupon the State of New York, acting through the Board of Managers of the New York State Custodial Asylum for Feeble-Minded Women at Newark, New York, pursuant to the rights so granted, entered upon the premises of said various owners and laid a six-inch tile pipe from said spring along the course indicated in the said grants, and such pipe line so laid has continued in existence up to the present time, but has become out of repair and subject to leakage, and it is desirable and necessary to substitute in place thereof an eight-inch cast iron pipe line, the six-inch tile pipe line to remain in use only until the eight-inch cast iron pipe line has been constructed and approved, and the same location to be followed in laying the new pipe. INQUIRY. Can this new eight-inch pipe line be laid under the easements granted in 1904, above quoted, without additional compensation to the owners of the land other than is provided for in said grants? OPINION. The right created by the instruments above quoted is an easement and not a mere license. They contain language appropriate to grant a right in perpetuity. Barber v. Hudson River Telephone Co., 105 App. Div. 154. These instruments must be construed most favorably to the grantee (the State of New York) and most strictly against the grantors. If there is uncertainty and ambiguity in the language, the former is entitled to the benefit of it. Blackman v. Stryker, 142 N. Y. 555. The terms of the grants by which the easement in question is created definitely fix the location of the pipe line by reference to the map referred to, but the language of the instruments is not so definite in fixing the extent of the right granted thereby. For example, the granting clause gives the right to lay, maintain, operate, repair and remove pipe lines. The subsequent references in the instrument are to a pipe line. The question, therefore, arises from this uncertainty in the grant whether the grantor is entitled to maintain but a single pipe line or several pipe lines. But, as I view the situation, it is unnecessary to pass upon the question whether the grant gives the asylum the right to construct and maintain more than one pipe line, and accordingly I shall refrain from discussing that question. As I look at it, this institution is now about to lay a new pipe which is ultimately to take the place of the one already existing by reason of the latter's leaky and worn out condition. The work contemplated is directed towards the maintenance, alteration and repair of the existing pipe line so as to preserve its usefulness. The easement here in the language of Bradley, J., in the case of Gilligan V. Feuschter, 8 N. Y. State Rep. 220, at p. 222, "carried with it the privilege of the party beneficially interested in its maintenance to go upon the premises for the purpose of making the repairs necessary to the preservation of its usefulness." The grant is sufficiently broad enough, in my opinion, to give the State of New York the right to enter upon the premises in question and rebuild and make whatever repairs are necessary to preserve the usefulness of the pipe line. The intention of procuring the easements by the State of New York was for the purpose of having ever after the right, without further compensation, to carry in a reasonable manner over the lands of the grantees, water from the spring which has already been mentioned. There is ample authority, construing these grants as I am construing them, thus giving the State of New York the right to do what is now contemplated. Roberts v. Roberts, 55 N. Y. 275. Huntington v. Asher, 96 N. Y. 604; p. 613. Trustees of Southampton v. Jessup, 162 N. Y. 122, p. 129. I am of the opinion that the managers of this asylum may, under the grants in question, go upon the lands of the grantors and without additional compensation to them or their predecessors in title (except damage to crops, etc., specifically provided for in the grant) lay the proposed eight-inch cast iron pipe line. Dated, October 7, 1912. THOMAS CARMODY, To HON. SAMUEL J. TILDEN, Fiscal Supervisor of Charities. |