Thomas W. Biddle, Esq. Newark, New York
This is in reply to your letter of August 10, 1979 in which you seek this office's opinion in your capacity as Town Counsel for the Town of Arcadia as to who has the responsibility for making repairs to the North Main Street Bridge over the Penn Central Railroad tracks in the Village of Newark. You state in your letter: "The southern approach, the bridge structure itself, and part of the northern approach are located within the corporate limits of the Village of Newark; that part of the northern approach situate in the Town of Arcadia is merely an earth fill embankment, and no Town highway intersects any part of the bridge or its approaches."
An order of the Public Service Commission dated October 14, 1930 and amended March 26, 1935 was made pursuant to chapter 678 of the Laws of 1928, the Grade Crossing Elimination Act and provided for the "elimination of the existing highway-railroad crossings at grade of the railroad operated by The New York Central Railroad Company and North Main Street (Willow avenue) and Mud Mill road in the village of Newark, Wayne county."
Chapter 678 provides in part:
"6. The department of public works or the railroad corporation or corporations or the county or counties affected thereby as the commission may direct, shall with all convenient speed after the service of such elimination order, cause to be prepared plans, specifications and estimates of the cost of such elimination and shall submit them to the commission for its approval. Such plans shall specifically show that part of the work of elimination which when completed shall be maintained by the railroad corporation or corporations and that part which shall be maintained by the state or one or more municipalities in which the work of elimination is located, as provided by section ninety-three of the railroad law, and such plan shall also show that part of the work of elimination which shall be otherwise maintained as the commission may direct."
Section 93 of the Railroad Law (chapter 546 of the Laws of 1928) in effect at the time of the Order of the Public Service Commission, provided in part:
"§ 93. Repair of bridges and subways at crossings. When a highway crosses a railroad by an overhead bridge, the framework of the bridge and its abutments shall be maintained and kept in repair by the railroad corporation, and the roadway thereover and the approaches thereto shall be maintained and kept in repair by the municipality having jurisdiction over and in which the same are situated * * *."
The map which you enclosed as part of your letter is part of the Public Service Commission Order and delineates the division of maintenance as follows:
"The Bridge and approaches shall be maintained as follows: The framework of the Spans `B' to `C' and their supporting piers and abutment to be maintained by the N.Y.C.R.R. Co. Spans `A' to `B' and all remaining piers, abutments and approaches within the Village to be maintained by the Village of Newark. That part of the north approach outside of the Village to be maintained by the Department of Public Works, State of New York. The lateral connecting highway shall be maintained by the Town of Arcadia. The connection provided to Mud Mills Road in the Village to be maintained by the Village of Newark. Driveways providing access to private properties shall be maintained by the respective owners of said properties. The roadway, sidewalks, and railing thruout the entire structure from `B' to `C' to be maintained by the Village of Newark."
Since chapter 678 of the Laws of 1928, chapter 546 of the Laws of 1928 and section 93 of the Railroad Law sets forth the duty of maintenance, it is concluded that the repairs and maintenance of the bridge and related structures should be apportioned as set forth above.