118 Mass. 561 (Mass. 1875), Worcester & Nashua Railroad Co. v. Railroad Comm'rs

Citation118 Mass. 561
Opinion JudgeGray, C. J.
Party NameWorcester and Nashua Railroad Company v. Railroad Commissioners
AttorneyG. F. Hoar, for the petitioner, F. T. Blackmer & S. Utley, for the Boston, Barre and Gardner Railroad Corporation. G. F. Hoar, for the petitioner.
Judge PanelGray, C. J. Wells & Ames, JJ., absent.
Case DateOctober 22, 1875
CourtSupreme Judicial Court of Massachusetts

Page 561

118 Mass. 561 (Mass. 1875)

Worcester and Nashua Railroad Company

v.

Railroad Commissioners

Supreme Court of Massachusetts

October 22, 1875

Argued October 7, 1875

Page 562

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.

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