Worcester & Nashua Railroad Co. v. Railroad Comm'rs

• Decision Date: 22 October 1875
• Citation: 118 Mass. 561
• Parties: Worcester and Nashua Railroad Company v. Railroad Commissioners
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

118 Mass. 561

Worcester and Nashua Railroad Company v. Railroad Commissioners

Supreme Court of Massachusetts

October 22, 1875

Argued October 7, 1875

Worcester. Petition for a writ of certiorari to the board of railroad commissioners. The petition alleged that the petitioner and the Boston, Barre and Gardner Railroad Corporation were railroad corporations having their places of business in this county, and the petitioner had a location extending through the city of Worcester; that by the St. of 1871, c. 343, § 10, the Boston, Barre and Gardner Railroad Corporation was authorized to extend its railroad from the terminus north of Garden Street in this city to the Union Passenger Station, and to locate, construct and maintain the same within the location of the railroad of any other corporation, at such places and upon such terms as the parties should agree, and, in case of their disagreement, as the board of railroad commissioners should determine; that for that purpose the Boston, Barre and Gardner Railroad Corporation desired to locate, construct and maintain its road within the location of the petitioner in this city; that the parties failed to agree upon the terms or the places of such location, construction and maintenance; that the Boston Barre and Gardner Railroad Corporation applied to the board of railroad commissioners, and, setting forth these facts prayed that board to determine the terms and places aforesaid; that the board of railroad commissioners, after notice to the petitioner of that application, heard the parties, and determined that the Boston, Barre and Gardner Railroad Corporation might locate, construct and maintain its road, for such purpose, at certain places within the petitioner's location in this city, upon certain terms, and made and promulgated a decree, wherein those places and terms were described and set forth; that at that hearing the petitioner prayed the board to assess and award to the petitioner damages for the injury to its land and easements by such location, construction and maintenance, and to require the Boston, Barre and Gardner Railroad Corporation to secure and pay such damages as part of the terms on which it should be permitted to locate, construct and maintain its road that the board of railroad commissioners refused so to do, and ruled that it had no jurisdiction or authority to assess such damages, or to make payment thereof or security therefor part of the terms aforesaid; that the board erred in such ruling, and that the petitioner was aggrieved by such refusal, and had sustained much damage by such location, construction and maintenance, for which it was without remedy. The prayer of the petition was that a writ of certiorari might issue, requiring the board of railroad commissioners to certify its proceedings in the premises, and that the same might be quashed.

The Boston, Barre and Gardner Railroad Corporation appeared and demurred to the petition, and the case was reserved by Devens, J., upon the petition and demurrer, both corporations consenting, for the consideration of the full court.

When the papers had been read, The Court observed that no notice had been given to the railroad commissioners, or appearance entered or answer filed in their behalf.

Writ of certiorari to issue.

G. F. Hoar, for the petitioner, suggested that as the hearing was upon the petition, which was addressed to the discretion of the court, it was sufficient, and in accordance with precedents in similar cases, to give notice to the corporation which was the adverse party at the hearing before the tribunal whose proceedings were sought to be quashed.

F. T. Blackmer & S. Utley, for the Boston, Barre and Gardner Railroad Corporation.

Gray, C. J. Wells & Ames, JJ., absent.

OPINION

Gray, C. J.

The practice in cases of this kind is well settled by the decisions of this court. Rutland v. County Commissioners, 20 Pick. 71. Farmington River Water Power Co. v. County Commissioners, 112 Mass. 206, and cases cited. Tewksbury v. County Commissioners, 117 Mass. 563.

Upon a petition for a writ of certiorari to bring up and quash the proceedings of an inferior tribunal, notice may indeed, at the discretion of the court, be ordered to a person or corporation that was adversely interested at the hearing below. But notice to show cause against the issuing of the writ must be given to the tribunal to which the writ, if granted, will be addressed; and that tribunal is the only party which can file an answer to the petition, or which is, strictly speaking, the adverse party. This court will not proceed to consider whether there is any error in the proceedings of the inferior tribunal, without notice to it, and the inspection of a copy of its record, which is ordinarily annexed to the petition, but, if not so annexed, may be produced by the respondent.

The answer of the respondent, when it states any facts, is in the nature, not of an allegation of a party, but of an official return, conclusive in all matters of fact, and should be signed by the members of the tribunal, and not by attorney. The commissioners are not, of course, bound to appear or answer to the petition. But it is ordinarily convenient that they should, in order that the case may be decided upon its merits, and not upon technical points; for the petition is addressed to the discretion of the court, and will not be granted, unless substantial justice appears to require it; but, after the writ has been issued, the court is bound by the record.

When a question of law only is intended to be raised upon the allegations of the petition and the record annexed, an answer in the nature of a demurrer may be filed by attorney; but it must be the demurrer of the commissioners. No other party can be a respondent in the case, or file an answer or demurrer.

It will be proper, and in accordance with usage, that the counsel of the corporation which is interested to maintain the proceedings sought to be quashed should appear, by the permission and in the name of the respondents, to oppose the petition.

Report dismissed.

The petitioner then amended its petition, by inserting an allegation that all the proceedings of the railroad commissioners appeared by their record, and exhibiting an attested copy thereof.

By this record it appeared that the board of railroad commissioners "determines that the Boston, Barre and Gardner Railroad shall be located over such portions of the lands of the Worcester and Nashua Railroad Company as are crossed by the following described centre line, extending from the Union Passenger Station to a point, opposite the freight-house of the Boston, Barre and Gardner Railroad, north of Gardner Street in the city of Worcester:" (describing it particularly by bounds, courses, distances and monuments) "The portions of land belonging to the Worcester and Nashua Railroad Company, which are to be taken and used under this decree by the Boston, Barre and Gardner Railroad Corporation, are as follows:" (describing them in like manner) "Wherever, by the foregoing location, the Boston, Barre and Gardner Railroad shall cross any track belonging to the Worcester and Nashua Railroad Company, the cost of constructing and maintaining the necessary frogs, and all other expenses pertaining to such crossings, shall be borne by the Boston, Barre and Gardner Railroad Corporation. In the matter of awarding damages for the land or easements of said Worcester and Nashua Railroad Company which are included in the foregoing location, the board is of opinion that it has no jurisdiction, and makes no estimate or order in the premises."

The railroad commissioners thereupon filed an...