Harris, J.
The mandate of the legislature is, that the commissioners of highways of the town of Livingston shall build a bridge over the Roeliff Jansen’s kill, upon or near the site of the old bridge. But there may have been more than one old bridge over the kill. The act itself speaks of another bridge over the same stream, known as the Blue Store Bridge. That is not the bridge intended. It is where a bridge once stood in the neighborhood of the old block factory. It is thus the legislature indicate the bridge they design to have rebuilt. It is to be built “ upon or near the site of the old bridge,” which is “ near where the block factory stood.”
The object of the legislature in imposing this burden upon the towns which are required to contribute to the expense of the bridge, is apparent. There is a public highway leading north from the towns of Clermont and Germantown to Catskill and Hudson. Upon this highway a bridge had been erected over the Roeliff Jansen’s kill. That bridge had been carried away, and thus the travel upon that road had been interrupted. The object of the legislature was to have the bridge re-constructed, so that travel upon the road might be resumed. The commissioners are therefore required to build a bridge “ upon [345]*345or near the site of the old bridge.” The rebuilding of the bridge was required for the accommodation of that portion of the public which might have occasion to travel upon that road. It was for this purpose that the legislature thought fit to direct the expenditure. The bridge was to be built in connection with, and to become a part of. the highway—a well-known and public thoroughfare.
There is no reason to suppose that the legislature intended that the line of the road should be changed. Certainly the act contains no authority to that effect. Nothing else seems to have been contemplated than the reconstruction of the bridge upon the line of the road as it then existed. And yet, I am not prepared to say, that had the proper authorities on each side of the stream seen fit to alter the line of the road, at the point of crossing, the site of the bridge would not have gone with the road. I am inclined to think it would. Though this was not the thing before the mind of the legislature, it would have given effect to the legislative intent. It would have provided for the travel upon the road. But even if the line of the road should not be changed, it might not be desirable to construct the bridge precisely upon the site of the old bridge. Within the limits of the road itself one point might be more eligible than another. A joint meeting of the commissioners of the three towns was therefore provided for, in the act, to determine upon the site. At this meeting, the commissioners of two towns “ voted for a site at a place further up the creek, at a place known as the big rock, being a point at or near the south termination of a line fence between Alexander Crofts and Christian Cooper’s lands.” Against this the commissioners of Livingston protested, as contrary to the spirit of the act. Thus, the majority of the commissioners, under the authority given them by the act to fix the site of the new bridge, have left the road, for, and as a part of which, the bridge was tobe built, and passing up the stream more than a quarter of a mile, away from any public highway whatever, have assumed to locate the site of the new bridge at a place known as the big rock, upon the [346]*346lands of private individuals, and without their consent. In doing this, I think they went beyond the power -conferred upon them by the legislature.
It is claimed that the legislature, by requiring the bridge to be built “ upon or near the site of the old bridge,” and then authorizing the commissioners of the three towns, or a majority of them, to fix the site, has manifested an intention to endow the commissioners with a discretion sufficiently broad to cover’ what they have done. But I cannot assent to this latitude of construction.- The word “near,” which the legislature has employed in connection with the site of the new bridge, may be used as an incident to either time or space. In either case, it is used relatively, with reference to the subject to which it is applied. What would be near, in one case, would not be near, in another. In The People v. Denslow, (1 Caines, 177,) it rvas thought that a statute requiring a turnpike company to erect their gate near John Van Hoesen’s house, had been complied with by erecting the gate within 33 rods of the house. On the contrary, in Griffen v. House, (18 John. 397,) where a turnpike company, with a road about 20 miles in length, were required to locate their easterly gate at such a place near the Massachusetts line as the president and directors should direct, it was held that a gate two miles and three quarters from the line, was too far off to be “ near.” In this very case, while the commissioners of Clermont and G-ermantown felt themselves at liberty to locate the new site at the big rock, because though distant more than a quarter of a mile, it was near the old site, they have themselves determined that the new bridge shall be built “ at a point at or near the south termination of a certain line fence.” How, it is but a little more than a quarter of a mile from the south termination of the fence, at or near which the commissioners have determined that the new bridge shall be built, to the site of the old bridge. Certainly the site of the old bridge is just as near to the point selected by the commissioners as the termination of the fence designated, is to the site of the old bridge. Why, then, may not the commissioners of Livingston proceed to build their bridge upon the old site, [347]*347assuming that it is sufficiently near to the point mentioned in the location to answer the terms used by the commissioners to designate the new site ? Ho one would pretend that this could be done, for the reason that it is obvious that no such thing was intended. We readily see from the circumstances, that the commissioners, who exercised the power of determining the site, meant that the new bridge should be built, not at the old site, but at some point very near to the south termination of the fence at the big rock. By the same mode of reasoning, I am led to the conclusion that the legislature intended that the new bridge, whether built upon or near the site of the old bridge, should be built upon the line of the road leading from Clermont and Germantown to Catskill and Hudson ; and that, in attempting to have it built away from that road, in the expectation, perhaps, that the public would by some means have the road brought to the bridge, the commissioners went beyond their power.
But again, the land upon which the new bridge is to be built, according to the determination of the commissioners, is private property. The bed of the stream is not less so than the land upon the shore. The public have done nothing to acquire a right of property in, or even a right to use this land. The subsequent effort of the commissioners of Clermont to provide a remedy for this difficulty, by laying out a road along the southerly margin of the stream from the road to the new site, was entirely abortive. The difficulty still exists. The land upon which the new bridge is to be built is private property. The legislature has not directed it to be taken, and no authority having jurisdiction for that purpose has taken it for any public use.
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Harris, J.
The mandate of the legislature is, that the commissioners of highways of the town of Livingston shall build a bridge over the Roeliff Jansen’s kill, upon or near the site of the old bridge. But there may have been more than one old bridge over the kill. The act itself speaks of another bridge over the same stream, known as the Blue Store Bridge. That is not the bridge intended. It is where a bridge once stood in the neighborhood of the old block factory. It is thus the legislature indicate the bridge they design to have rebuilt. It is to be built “ upon or near the site of the old bridge,” which is “ near where the block factory stood.”
The object of the legislature in imposing this burden upon the towns which are required to contribute to the expense of the bridge, is apparent. There is a public highway leading north from the towns of Clermont and Germantown to Catskill and Hudson. Upon this highway a bridge had been erected over the Roeliff Jansen’s kill. That bridge had been carried away, and thus the travel upon that road had been interrupted. The object of the legislature was to have the bridge re-constructed, so that travel upon the road might be resumed. The commissioners are therefore required to build a bridge “ upon [345]*345or near the site of the old bridge.” The rebuilding of the bridge was required for the accommodation of that portion of the public which might have occasion to travel upon that road. It was for this purpose that the legislature thought fit to direct the expenditure. The bridge was to be built in connection with, and to become a part of. the highway—a well-known and public thoroughfare.
There is no reason to suppose that the legislature intended that the line of the road should be changed. Certainly the act contains no authority to that effect. Nothing else seems to have been contemplated than the reconstruction of the bridge upon the line of the road as it then existed. And yet, I am not prepared to say, that had the proper authorities on each side of the stream seen fit to alter the line of the road, at the point of crossing, the site of the bridge would not have gone with the road. I am inclined to think it would. Though this was not the thing before the mind of the legislature, it would have given effect to the legislative intent. It would have provided for the travel upon the road. But even if the line of the road should not be changed, it might not be desirable to construct the bridge precisely upon the site of the old bridge. Within the limits of the road itself one point might be more eligible than another. A joint meeting of the commissioners of the three towns was therefore provided for, in the act, to determine upon the site. At this meeting, the commissioners of two towns “ voted for a site at a place further up the creek, at a place known as the big rock, being a point at or near the south termination of a line fence between Alexander Crofts and Christian Cooper’s lands.” Against this the commissioners of Livingston protested, as contrary to the spirit of the act. Thus, the majority of the commissioners, under the authority given them by the act to fix the site of the new bridge, have left the road, for, and as a part of which, the bridge was tobe built, and passing up the stream more than a quarter of a mile, away from any public highway whatever, have assumed to locate the site of the new bridge at a place known as the big rock, upon the [346]*346lands of private individuals, and without their consent. In doing this, I think they went beyond the power -conferred upon them by the legislature.
It is claimed that the legislature, by requiring the bridge to be built “ upon or near the site of the old bridge,” and then authorizing the commissioners of the three towns, or a majority of them, to fix the site, has manifested an intention to endow the commissioners with a discretion sufficiently broad to cover’ what they have done. But I cannot assent to this latitude of construction.- The word “near,” which the legislature has employed in connection with the site of the new bridge, may be used as an incident to either time or space. In either case, it is used relatively, with reference to the subject to which it is applied. What would be near, in one case, would not be near, in another. In The People v. Denslow, (1 Caines, 177,) it rvas thought that a statute requiring a turnpike company to erect their gate near John Van Hoesen’s house, had been complied with by erecting the gate within 33 rods of the house. On the contrary, in Griffen v. House, (18 John. 397,) where a turnpike company, with a road about 20 miles in length, were required to locate their easterly gate at such a place near the Massachusetts line as the president and directors should direct, it was held that a gate two miles and three quarters from the line, was too far off to be “ near.” In this very case, while the commissioners of Clermont and G-ermantown felt themselves at liberty to locate the new site at the big rock, because though distant more than a quarter of a mile, it was near the old site, they have themselves determined that the new bridge shall be built “ at a point at or near the south termination of a certain line fence.” How, it is but a little more than a quarter of a mile from the south termination of the fence, at or near which the commissioners have determined that the new bridge shall be built, to the site of the old bridge. Certainly the site of the old bridge is just as near to the point selected by the commissioners as the termination of the fence designated, is to the site of the old bridge. Why, then, may not the commissioners of Livingston proceed to build their bridge upon the old site, [347]*347assuming that it is sufficiently near to the point mentioned in the location to answer the terms used by the commissioners to designate the new site ? Ho one would pretend that this could be done, for the reason that it is obvious that no such thing was intended. We readily see from the circumstances, that the commissioners, who exercised the power of determining the site, meant that the new bridge should be built, not at the old site, but at some point very near to the south termination of the fence at the big rock. By the same mode of reasoning, I am led to the conclusion that the legislature intended that the new bridge, whether built upon or near the site of the old bridge, should be built upon the line of the road leading from Clermont and Germantown to Catskill and Hudson ; and that, in attempting to have it built away from that road, in the expectation, perhaps, that the public would by some means have the road brought to the bridge, the commissioners went beyond their power.
But again, the land upon which the new bridge is to be built, according to the determination of the commissioners, is private property. The bed of the stream is not less so than the land upon the shore. The public have done nothing to acquire a right of property in, or even a right to use this land. The subsequent effort of the commissioners of Clermont to provide a remedy for this difficulty, by laying out a road along the southerly margin of the stream from the road to the new site, was entirely abortive. The difficulty still exists. The land upon which the new bridge is to be built is private property. The legislature has not directed it to be taken, and no authority having jurisdiction for that purpose has taken it for any public use. I confess, therefore, that I am unable to see why the commissioners who should undertake to build a bridge upon this new site, would not, the moment they should enter upon the land where it is to be built, and as often as they should do so, make themselves trespassers. I do not, of course, deny the power of the legislature to direct that land be taken for a bridge, as well as for a rail road or a canal; but the difficulty in the [348]*348case is, that the legislature has evinced no intention to have this done, and no provision has been made for compensation to the owner, without which even the legislature could not take it.
There is another feature of this case which, though not noticed upon the argument, seems to me to deserve a, passing notice. A writ of alternative mandamus was served upon the defendants, to which they made their return. To this return the relators were at liberty either to demur or to plead. , They elected to plead, find by their plea took issue upon all the material allegations in the return. For the determination of this issue, the statute provides that the .like proceedings shall be had, as might have been had if the relators had bz-ought an action on the case against the defendants for .a false return, and that in case a verdict be found in favor of the relators, they should recover damages and costs, in like manner as if it had been an action on the case. The trial of the issue between the parties, therefore, is to be regarded as the trial of an action against the defendants for a false return. Of course the relators hold the affirmative of the issues. The return is to be taken as true, until it is falsified upon the trial.
In this case the trial was had without a jury. The facts found by the judge are substantially the same as those stated in the retunz. Not a single allegation upon which the relators have taken issue, has been disproved. Had the trial been before a jury, their verdict must have been for the defendants. And yet the same judgment has been rendered against the defendants, as if there had been a verdict against them. Not only has a peremptory mandamus been awarded, but a judgment has been rendered against them for costs, to the amount of $152.78. This, I think, was erroneous. By pleading to the return, the relators admitted that, upon its face, if was a sufficient answer to the case made by the alternative writ. No matei’ial fact stated in the return having been disproved upon the trial, the defendants were entitled to a verdict in their favor, and of course to judgment.
[349]*349[Albany General Term,
December 4, 1854.
I am of opinion, therefore, that the judgment ought to be reversed, and that, upon the whole record, the defendants are entitled to judgment.
Watson, J., concurred.
Wright, J., dissented.
Judgment for defendants.
Wright, Harris and Watson, Justices.]