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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.
CONSTITUTIONAL LAW -- Gifts and Loans (lighting of private right-of-way)
STREETS AND HIGHWAYS -- Private Roads (lighting by village)
VILLAGES -- Powers and Duties (lighting of private right-of-way)
STATE CONSTITUTION, ARTICLE VIII, §1; VILLAGE LAW, §§6-626; 12-1200: A village which has provided lighting at village expense for a private right-of-way under the mistaken belief the right-of-way was a village street may not continue to provide such lighting unless the lighting primarily furthers a village purpose and only incidentally benefits the private property. The village also may continue to pay the cost of lighting the private right-of-way if the right-of-way has become a village street by prescription or public use. The village's provision of lighting may be one factor in determining whether the private right-of-way has become a village street by prescription or use.
You state that a village has been making payments for a number of years for dusk-to-dawn lighting along a private right-of-way under the mistaken belief that the right-of-way was a village street. You ask whether the village may continue to provide such lighting at village expense.
Village Law, §12-1200 authorizes villages to contract, in the name of the village, for lighting the "streets, public grounds and public buildings of the village ...". This Office has previously expressed the opinion that the word "street" as used in this context is intended to relate to public streets (1975 Opns St Comp No. 75-1105, unreported; 12 Opns St Comp, 1956, p 59; 7 Opns St Comp, 1951, p 285).
There is no similar statutory authority for a village to light private streets or rights-of-way at village expense. Moreover, the payment of village moneys to provide lighting for private streets or rights-of-way may constitute a gift of public moneys to or in aid of private individuals or entities in violation of article VIII, §1 of the Constitution (see 1982 Opns St Comp No. 82-126, p 156; 1992 Atty Gen Opn No. I92-30). We note, however, that there would be no unconstitutional gift if a village provides lighting which primarily furthers a proper village purpose, such as illumination of village streets or other village property, and only incidentally benefits private properties (see, e.g., Murphy v Erie County, 28 NY2d 80, 320 NYS2d 29; Rodriguez v Town of Beekman, 120 AD2d 724, 502 NYS2d 778 app dsmd 69 NY2d 822, 513 NYS2d 1027). Therefore, the village is not authorized to continue to provide, at village expense, lighting for the private right-of-way unless the lighting is intended primarily to further a village purpose and only incidentally benefits the private right-of-way.
The village also could continue to pay the cost of lighting the right-of-way if the right-of-way has become a village street by prescription or public use. Private land may become a public village street by prescription or public use, pursuant to Village Law, §6-626, if there has been continuous and uninterrupted public use as a street for 10 years or more, and the village has continuously maintained, repaired and, thus, assumed control of the street for the statutory period (see Jim May Pontiac Buick, Inc. v Gleason, 112 AD2d 618, 492 NYS2d 141; Impastato v Catskill, 55 AD2d 714, 389 NYS2d 152, affd 43 NY2d 888, 403 NYS2d 497; Jakobson v Chestnut Hill, 106 Misc 2d 918, 436 NYS2d 806; Catskill v DeCicco, 2 Misc 2d 942, 147 NYS2d 756; 21 Opns St Comp, 1965, p 450).
The provision of lighting may be one relevant factor in determining whether a street has been maintained and controlled by a village. In Catskill v DeCicco, supra, a public street was found to have been created by public use where the road in question was used freely by the public for the requisite period of time and the village had improved the road by oiling and making repairs, installing lighting, and exercising "some measure of general supervision" (see also Jakobson, supra). It is doubtful, however, that the provision of lighting, by itself, would constitute sufficient public maintenance and control of the road to create a public street by prescription or public use.
With regard to the situation presented in your letter, we do not possess sufficient facts to express an opinion as to whether the requirements of Village Law, §6-626 regarding public use and village maintenance, repair and control have been satisfied. In any event, we believe that whether the private right-of-way has become a village street pursuant to the Village Law is a question of fact (see McCarthy v Lake Shore, etc. R. Co., 76 NY 592) to be determined, in the first instance, by the village.
In summary, the village may not continue to provide lighting at village expense for the private right-of-way unless the lighting primarily furthers a village purpose, such as illuminating village property, and only incidentally benefits the private property. The village may also continue to light the right-of-way if it has become a village street by prescription or use. The provision of lighting to private property by a village over a period of years may be one factor in determining whether the private property has become a village street by prescription or use.
September 7, 1993
Michael Davidoff, Esq., Village Attorney
Village of Bloomingburg