By the Transportation Corporations Law (§ 102) leave is granted by. the state to telegraph and telephone companies to construct, and maintain their fixtures “ over or ¡under any of the'- public roads, streets and highways This is full permission- without compensation so far as the state can give it. Where, however, the fée.'of the highway belongs to the abutting owners, instead of being in the state, or any of its political subdivisions or bodies politic, compensation to such owners has to he made for.the easement taken by such companies (Eels v. Am. Tel. & Tel. Co., 143 N. Y. 133). In the taking of land in Putnam couñity fór its water supply, the city of New York is permitted to take the land in the adjacent highways also, for sanitary reasons,- but only tó care for such highways and hold .them in trust for the public, use'as highways (ch. 445, Laws of 1877; ch. 490, Laws of 1883; ch., 189 Laws of 1893).' The "highway over'which the plaintiff seeks to run,its telephone, wires, on poles was"'acquired by the city in that. way. It follows that the section of .the .Transportation Corporations Law already *501cited applies to it. To say that inasmuch as the city owns the abutting land also it is entitled, to Compensation may be specious', but not enough so to be misleading. That the city.owns tile abutting land does not make a difference, for the compensation, where it has to'be given, is not given for the abutting land, but for the land in- the highway, and here none can be exacted for the land in the highway, by reason of the leave granted by the statute (People v. Kerr, 27 N. Y. 188).
The order should be reversed and the motion granted.
Hirschberg, P. J., Hooker,-Rich and Miller, JJ., concurred.
. Order -reversed, with ten dollars costs and disbursements, and' motion granted, with costs.