                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 25, 2016                   521171
________________________________

ST. LAWRENCE COUNTY,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

TOWN OF FOWLER et al.,
                    Respondents.
________________________________


Calendar Date:   January 13, 2016

Before:   Peters, P.J., Garry, Egan Jr., Rose and Clark, JJ.

                             __________


      Stephen D. Button, County Attorney, Canton (Michael C.
Crowe of counsel), for appellant.

      Case & Leader, LLP, Gouverneur (Henry J. Leader of
counsel), for Town of Fowler, respondent.

      Slye & Burrows, Watertown (Christina E. Stone of counsel),
for Hampshire Paper Company, Inc., respondent.

                             __________


Peters, P.J.

      Appeal from an order of the Supreme Court (Demarest, J.),
entered March 13, 2015 in St. Lawrence County, which, among other
things, granted defendants' motions for summary judgment
dismissing the complaint and declared that the Power Inlet Bridge
is owned by plaintiff.

      Defendant Hampshire Paper Company, Inc. owns and operates a
hydroelectric generating plant on the Oswegatchie River in the
Town of Fowler, St. Lawrence County. Emeryville Road, a town
road, crosses over Hampshire Paper's power intake channel and the
Oswegatchie River by virtue of two sequential bridges that are
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roughly 175 feet apart. The bridge crossing the intake channel
(hereinafter the Power Inlet Bridge) was privately constructed
and has a 37-foot span, while the bridge crossing the Oswegatchie
River (hereinafter the Oswegatchie Bridge) was erected by the
County in 1892 and has roughly a 90-foot span.

      In 2012, plaintiff commenced this declaratory judgment
action against Hampshire Paper and defendant Town of Fowler
seeking an adjudication of the parties' rights and legal
obligations with respect to the maintenance of the Power Inlet
Bridge. Following joinder of issue and discovery, Hampshire
Paper moved for summary judgment dismissing the complaint insofar
as asserted against it, and the Town cross-moved for summary
judgment dismissing the complaint and declaring that plaintiff
owned the Power Inlet Bridge. Plaintiff opposed the motions and
cross-moved for summary judgment declaring that Hampshire Paper
or, alternatively, the Town was responsible for the maintenance
and repair of the Power Inlet Bridge. Supreme Court granted
defendants' motions, declared that plaintiff is the owner of the
Power Inlet Bridge and dismissed the complaint. Plaintiff
appeals.

      The principles governing this dispute, despite their
antiquity, are no less sound today than they were when
articulated more than a century ago. As a general rule, it is
presumed that a bridge used by the public must be maintained by
the public (see Dygert v Schenck, 23 Wend 446, 451 [1840]). The
presumption will not arise, however, where a private owner
constructs a water channel for his or her own profit that
interferes with a public right-of-way and he or she constructs a
bridge to restore the public's right-of-way over the channel (see
id. at 451; Heacock & Lockwood v Sherman, 14 Wend 58, 60-61
[1835]).1 Nevertheless, a municipality will become responsible
for the care and maintenance of a privately-erected bridge if it


    1
        It has long been held that the general statutory duty of
a municipality to keep bridges within its borders in repair does
not operate to abrogate this common-law rule (see Dygert v
Schenck, 23 Wend at 449-450; see generally Highway Law §§ 140
[1], [2]; 234; Village Law § 6-604).
                              -3-                521171

is traveled upon by the public and the municipality assumes
control thereof by regularly maintaining and repairing it (see
Speir v Town of Utrecht, 121 NY 420, 429 [1890]; see also Matter
of Marchand v New York State Dept. of Envtl. Conservation, 19
NY3d 616, 619-620 [2012]).

      While it appears that the Power Inlet Bridge was initially
erected by Hampshire Paper's predecessor in interest to restore
the public right-of-way interrupted by the creation of a water
channel,2 the uncontested evidence submitted on the motions
establishes that plaintiff has since taken charge of such bridge.
Documentary evidence and testimony from plaintiff's former
Superintendent of Highways demonstrate that, in 1983, the Power
Inlet Bridge was entirely redesigned and replaced by plaintiff.
Significantly, the evidence reveals that the replacement was
undertaken by plaintiff in order to facilitate repairs to the
nearby Oswegatchie Bridge, which plaintiff owns. Moreover,
plaintiff extended the Power Inlet Bridge's girders in 1986,
upgraded the railings in approximately 1991 and, by resolution
and with assistance from the Town, replaced the decking in 2013
(during the pendency of this action). Further, plaintiff has
taken on the responsibility of posting load and weight
restrictions on the Power Inlet Bridge. In our view, plaintiff's
actions extend far beyond mere repair and maintenance necessary
to keep a privately-owned bridge in a safe condition for the
traveling public and demonstrate, instead, that plaintiff
"actually [took] the bridge under [its] care" (Dygert v Schenck,
23 Wend at 448).

      Moreover, by constructing the adjacent Oswegatchie Bridge,
plaintiff created a singular causeway for the public to traverse
the length of Emeryville Road across the Oswegatchie River.
Notably, defendants' submissions make clear that, due to the
close proximity of the Power Inlet Bridge and the Oswegatchie


    2
        Although not conclusively established by the parties'
submissions on the motions, Hampshire Paper asked Supreme Court
to assume this fact for purposes of its summary judgment motion,
and requests that this Court do the same for purposes of this
appeal.
                              -4-                521171

Bridge and the absence of any place to safely turn around, a
vehicle that has crossed over one bridge will necessarily have to
cross over the second bridge. Thus, plaintiff's construction of
the Oswegatchie Bridge made it necessary for the traveling public
using that publicly-owned bridge to also utilize the Power Inlet
Bridge. Through the actions of plaintiff, the Power Inlet Bridge
became a public utility requiring major upgrades "to bear the
burdens of modern State highway traffic with the proper factor of
safety" (Rodee v City of Ogdensburg, 165 App Div 651, 659 [1915],
appeal dismissed 218 NY 621 [1916]). Under such circumstances,
it would be inequitable and unjust to impose upon Hampshire Paper
the onus of maintaining such a bridge (see id. at 659; cf. Town
of Watertown v City of Waterbury, 132 Conn 441, 448-449 [1945]).

      The burden having shifted to plaintiff to submit evidence
implicating "the existence of material issues of fact which
require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d
320, 324 [1986]; see Jacobsen v New York City Health & Hosps.
Corp., 22 NY3d 824, 833 [2014]), plaintiff did not dispute that
it replaced the bridge in 1983 or extended its girders in 1986.
Nor did plaintiff allege that the Power Inlet Bridge was not used
by the public. Rather, plaintiff's submissions establish only
that the Power Inlet Bridge was not included in its inventory of
bridges, that the Town had twice-previously (in 1935 and 1954)
advised the owners of the water intake channel that they were
responsible for its maintenance, and that no official action had
ever been taken by plaintiff under applicable state statutes to
take over responsibility for the bridge. Because plaintiff
failed to raise questions of fact concerning its continued
maintenance of the Power Inlet Bridge or the development of the
bridge as a public highway, Supreme Court properly awarded
defendants summary judgment dismissing the complaint and
declaring plaintiff responsible for maintaining such bridge (see
Speir v Town of Utrecht, 121 NY at 429; Rodee v City of
Ogdensburg, 165 App Div at 659).

     Garry, Egan Jr., Rose and Clark, JJ., concur.
                        -5-                  521171

ORDERED that the order is affirmed, with one bill of costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
