Opinion 89-21


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


STREETS AND HIGHWAYS -- Obstructions (cutting or removal of trees along town line highway) -- Repairs (repair and maintenance of town line highway)
SUPERINTENDENT OF HIGHWAYS -- Powers and Duties (maintenance and repair of town line highway, including cutting or removal of trees)

HIGHWAY LAW, §187: The cost of maintaining and repairing a town highway, the center line of which forms the boundary between two towns in different counties, must be borne equally by the affected towns. The highway superintendent of one town may maintain and repair a portion of the road located in the other town pursuant to an agreement with the highway superintendent of the other town. The maintenance and repair of a town line highway generally includes cutting or removing overhanging branches or trees constituting a danger to users of the highway, regardless of whether the trunks of the trees are located within the highway.

You ask the following with respect to a town highway, the center line of which forms the boundary between two towns in different counties:

(1) whether one town may undertake repairs on the portion of the road in the other town without the consent of the other town's highway superintendent;

(2) whether one town may remove trees in the other town to prevent the trees from falling across the highway; and

(3) whether complaints concerning maintenance should be filed with and acted upon by one or both highway superintendents.

Generally, a town is under a non-delegable duty to maintain its highways in a reasonably safe condition (see Lopes v Rostad, 45 NY2d 617, 412 NYS2d 127, 384 NE2d 673 [1978]). The duty to maintain highways in a reasonably safe condition extends not only to the road surface and shoulders but also applies to other conditions which reasonably could be expected to result in injury and damages to the public (Sanchez v Lippincott, 89 AD2d 372, 455 NYS2d 457 [4th Dept 1982]), including trees which overhang the road (see Harris v Village of East Hills, 41 NY2d 446, 393 NYS2d 691, 362 NE2d 243 [1977]; Tagg v City of Lockport, 228 AD 319, 238 NYS 662 [4th Dept 1930], affd 254 NY 582, 173 NE 876 [1930]; Embler v Town of Wallkill 132 NY 222 [1892]; 1985 Opns St Comp No. 85-6, p 6; see also Luceri v County of Orange, 144 AD2d 444, 534 NYS2d9 [2nd Dept 1988]). Therefore, a town is under a duty to make a reasonable inspection of trees along its highways, and to trim and remove such trees or portions thereof which constitute a danger to users of its highways (see Jones v State, 33 Misc 2d 959, 227 NYS2d 297 [1962]), irrespective of whether the trunks of the trees are inside or outside of the highway (see Harris, supra; Brown v State 2 Misc 2d 307, 58 NYS2d 691 [1945], affd 271 AD 811, 66 NYS2d 922 [4th Dept 1946]; Messinger v State 183 Misc 811, 51 NYS2d 506 [1944]). The town highway superintendent, as the official charged with the care and maintenance of town highways in a reasonably safe condition, is responsible for removing overhanging or broken branches from trees within the boundaries of town highways and the cost thereof is an expense of maintaining and improving the highway (see 1959 Opns St Comp, No. 59-589, unreported; 4 Opns St Comp, 1948 p 360, 3 Opns St Comp, 1947 p 88; see also Highway Law, §§140[1],[2],141[1],153), which, under certain circumstances, may be charged to the adjacent property owner (see Highway Law, §319).

Highway Law, §187, titled "(l)aying out, dividing and maintaining highway upon town line, or wholly in one town but adjacent to another town," provides, in relevant part, that:

An application to lay out a highway upon the line between two or more towns, or wholly in one town but adjacent to another town, shall be made to the town superintendents of each town, who shall act together in the matter; and, upon laying out any such highway, the expense of opening, working and keeping the same in repair shall be borne equally by such towns. * * * All highways heretofore laid out upon the line between any two towns... or wholly in one town... but adjacent to another town... shall be... kept in repair in the manner above directed * * *

Thus, section 187 requires the cost of opening, working and keeping in repair a town line highway to be borne equally by the affected towns. In this regard, we have previously expressed the view that "[o]rdinarily, the town highway superintendents of the towns affected agree as to the respective portions of the town line road which they will maintain" (24 Opns St Comp, 1968, p 930). We also now note that section 187 appears to apply to town line highways without regard to whether the highway or the affected towns are located in more than one county. Therefore, we believe that the highway superintendent of one town may maintain and repair the portion of a town line highway in the other town pursuant to an agreement with the highway superintendent of the other town even if the highway or the affected towns are located in more than one county.

Moreover, since the highway superintendents' duty to maintain highways in a reasonably safe condition includes care of overhanging trees, it follows that the maintenance and repair of a town line highway pursuant to such an agreement would generally include the cutting or removal of overhanging branches or trees which pose a danger to users of the highway, regardless of whether the trunk of the tree is located within the highway. Thus, in our opinion, the highway superintendent of one town may cut or remove dangerous overhanging branches or trees located in the other town pursuant to a maintenance and repair agreement with the highway superintendent of the other town.

Section 187 does not address the issue of with whom complaints concerning maintenance of a town line highway should be filed. We believe, however, that such complaints could be filed with the highway superintendent of either town. Should the highway superintendent of one town receive a complaint with respect to a portion of the road which the superintendent of the other town has agreed to maintain, the complaint should be referred for action to the highway superintendent of the other town.

Finally, we note that when the highway superintendents of two towns have entered into an agreement pursuant to Highway Law, §187 in relation to the maintenance and repair of a town line highway, it is unclear whether a town remains potentially liable for injuries to a third party caused by inadequate maintenance or repair of that portion of the highway for which the other town has responsibility (compare Buffington v State, 2 Misc 2d 496, 152 NYS2d 716, agreement not complying with section 187 not a release of liability as to any third party; Application of Freeholders of Towns of Elma and Marilla, 201 App Div 252, 194 NYS 554 [4th Dept 1922] affd 234 NY 554, 138 NE 540 [1922], towns must jointly maintain town line road; and former Highway Law, §97 [added L. 1890 c. 568], highway on line between two towns divided into districts and each district considered as belonging to town to which allotted for purposes of keeping highway in repair). Therefore, if the highway superintendent of one town becomes aware that the highway superintendent of the other town is not performing his duties under the agreement, it may be advisable for the highway superintendent of the first town to take steps to ensure that the highway is adequately maintained or repaired so as to protect his town from any liability that could result from the inadequate maintenance or repair. It also may be desireable for any agreement made under section 187 to contain a provision requiring each town to indemnify the other in the event it fails to fulfill its responsibilities under the agreement.

May 22, 1989
Peter Feldstein, Esq., Town Attorney
Town of Benson