124 Mass. 368 (Mass. 1878), Boston & M. Railroad v. Lowell & L. R. Co.

Citation124 Mass. 368
Opinion JudgeGray C. J.
Party NameBoston and Maine Railroad v. Lowell and Lawrence Railroad Company
AttorneyE. R. Hoar & C. F. Choate, for the plaintiff. J. G. Abbott, (J. H. George, of New Hampshire, with him,) for the defendant.
Judge PanelGray C. J. Endicott & Lord, JJ., absent.
Case DateApril 15, 1878
CourtSupreme Judicial Court of Massachusetts

Page 368

124 Mass. 368 (Mass. 1878)

Boston and Maine Railroad

v.

Lowell and Lawrence Railroad Company

Supreme Court of Massachusetts

April 15, 1878

Suffolk.

Decree for the plaintiff.

E. R. Hoar & C. F. Choate, for the plaintiff.

J. G. Abbott, (J. H. George, of New Hampshire, with him,) for the defendant.

Gray C. J. Endicott & Lord, JJ., absent.

OPINION

Page 369

Gray C. J.

This is a bill in equity to restrain the defendant corporation from locating and constructing an extension of its railroad in the city of Lawrence, within and along a part of the location of the plaintiff's railroad, and over land purchased by the plaintiff for depot and station purposes.

The original location of the plaintiff's railroad was filed in 1847, under the St. of 1846, c. 75. Although the description and plan of tat location do not furnish sufficient means for fixing the boundaries thereof with absolute accuracy, without reference to the lines of the railroad as constructed, it appears that the lines and curves of that location correspond with those of the railroad as constructed soon afterwards and since maintained, and the court concurs with the master in the conclusion that the central line of the railroad, as constructed, is substantially the same as the centre line intended by the location of 1847. The width of that location at the place now in question was five rods at one end and thence narrowing to four rods at the other.

Within that location, the plaintiff laid its tracks, and in 1850 built two signal-houses which have been since constantly used to govern the movement of the plaintiff's trains into and out of Lawrence; and before 1855 constructed and has since used a platform for unloading freight, a storehouse, a paint-shop and a carpenter's shop, partly within that location and partly upon a parcel of land adjoining, purchased by the corporation in 1848, and used for depot and station purposes and for other buildings required for the use of the railroad. The purposes to which the land within that location was appropriated being incident to the proper construction, maintenance, management and use of the railroad for the transportation of persons and goods, the land covered by the location was held by the corporation under its franchise for the public use in such a perfect sense that it would not even be liable to taxation. Worcester v. Western Railroad,

Page 370

4 Met. 564. Commonwealth v. Haverhill, 7 Allen 523. St. 1874, c. 372, § 62.

The St. of 1855, c. 141, authorized the plaintiff to make and file an amended location of its road, not exceeding five rods in width, on any land actually in its possession; and provided that "such amended location shall not be a waiver of or impair any rights they now have," and that "the route selected by said railroad in Lawrence for the construction of its road is hereby confirmed." The existing rights of the plaintiff under the old location were thus preserved in full force, notwithstanding that the new location filed under the St. of 1855, and which was wholly within the old location, was only forty feet wide at this place.

The location of the proposed extension of the defendant's railroad, of which the plaintiff complains, is twenty-six feet wide, crosses upon a level two branches of the plaintiff's railroad about a quarter of a mile apart, and, at these crossings and for the whole distance between them, is for a small portion of its width upon the plaintiff's depot and station grounds, but for the greater part of its width along and within the plaintiff's location of 1847, and includes a great part of the signal-houses, of the storehouse, of the paint-shop and carpenter's shop, and of the freight platform, above mentioned. The construction of the proposed extension of the defendant's railroad will be a serious injury to the plaintiff, and will greatly interfere with its necessary use of the aforesaid tracks, signal-houses, repair-shops, freight platform, and other structures for railroad purposes.

The principal question in the case is whether the proposed extension is justified by the General Railroad Act of 1874, c. 372, §§ 23-31. The defendant (after obtaining the written approval of the railroad commissioners, assuming to act under § 85, to "the proposed crossing" at grade of the plaintiff's railroad) has agreed with the mayor and aldermen of Lawrence, under § 25, that the route of the extension shall be as above stated.

The general principle is well settled, and has been applied in a great variety of cases, that land already legally appropriated to a public use is not to be afterwards taken for a like use, unless the intention of the Legislature that it should...

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38 practice notes
  • 41 P. 232 (Mont. 1895), 519, Butte, A. & P. Ry. Co. v. Montana U. Ry. Co.
    • United States
    • Montana Supreme Court of Montana
    • July 29, 1895
    ...case to the effect that if the necessity existed still the ground could not be taken. Boston & M. R. Co. v. Lowell & I. R. Co., 124 Mass. 368, was decided upon the ground that there must be an express legislative grant to authorize a longitudinal road to be built upon the right of w......
  • 17 W.Va. 812 (W.Va. 1881), Baltimore & O. Railroad Co. v. Pittsburg, W. & KY. Railroad Co.
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • May 7, 1881
    ...20 Wall. 445; 4 Otto 535; 32 Ohio St. 468; 27 Ohio St. 155; 3 Dillon C. C. 350; 33 Ohio St. 278; Const. Art. III, sec. 9; 68 N.Y. 167; 124 Mass. 368; 43 Conn. 234; 4 Cush. 72; Code, ch. 29, sec. 67; 66 N.Y. 413; 53 N.Y. 574; 118 Mass. 391; 32 Wis. 569; Mills Em. Dom. sec. 49 et seq.; Id. se......
  • 145 Mass. 433 (1888), Turner v. Fitchburg R. Co.
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • January 4, 1888
    ...8 Fed.Rep. 858; Railroad Co. v. Railroad Co., 118 Mass. 391; Railroad Co. v. Railroad Com'r, 118 Mass. 561; Railroad Co. v. Railroad Co., 124 Mass. 368; Railway Co. v. Railway Co., 81 Ill. 523. It was even questioned by counsel in Railroad Co. v. Railroad Co., 111 Mass. 125. Is it not an an......
  • 101 S.W. 576 (Mo. 1907), American Telephone & Telegraph Company of Missouri v. St. Louis, Iron Mountain & Southern Railway Company
    • United States
    • Missouri Supreme Court of Missouri
    • March 28, 1907
    ...the prior public use. Pennsylvania R. Co.'s Appeal, 93 Pa. St. 150; Pittsburg J. R. Co.'s Appeal, 122 Pa. St. 511; Railroad v. Railroad, 124 Mass. 368; N.W. Tel. Ex. Co. v. Railroad, 76 Minn. 334; R. S. 1899, sec. 1272; Railroad v. Depot Co., 125 Mo. 82. (b) Whether the proposed use will ma......
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38 cases
  • 41 P. 232 (Mont. 1895), 519, Butte, A. & P. Ry. Co. v. Montana U. Ry. Co.
    • United States
    • Montana Supreme Court of Montana
    • July 29, 1895
    ...case to the effect that if the necessity existed still the ground could not be taken. Boston & M. R. Co. v. Lowell & I. R. Co., 124 Mass. 368, was decided upon the ground that there must be an express legislative grant to authorize a longitudinal road to be built upon the right of w......
  • 17 W.Va. 812 (W.Va. 1881), Baltimore & O. Railroad Co. v. Pittsburg, W. & KY. Railroad Co.
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • May 7, 1881
    ...20 Wall. 445; 4 Otto 535; 32 Ohio St. 468; 27 Ohio St. 155; 3 Dillon C. C. 350; 33 Ohio St. 278; Const. Art. III, sec. 9; 68 N.Y. 167; 124 Mass. 368; 43 Conn. 234; 4 Cush. 72; Code, ch. 29, sec. 67; 66 N.Y. 413; 53 N.Y. 574; 118 Mass. 391; 32 Wis. 569; Mills Em. Dom. sec. 49 et seq.; Id. se......
  • 145 Mass. 433 (1888), Turner v. Fitchburg R. Co.
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • January 4, 1888
    ...8 Fed.Rep. 858; Railroad Co. v. Railroad Co., 118 Mass. 391; Railroad Co. v. Railroad Com'r, 118 Mass. 561; Railroad Co. v. Railroad Co., 124 Mass. 368; Railway Co. v. Railway Co., 81 Ill. 523. It was even questioned by counsel in Railroad Co. v. Railroad Co., 111 Mass. 125. Is it not an an......
  • 101 S.W. 576 (Mo. 1907), American Telephone & Telegraph Company of Missouri v. St. Louis, Iron Mountain & Southern Railway Company
    • United States
    • Missouri Supreme Court of Missouri
    • March 28, 1907
    ...the prior public use. Pennsylvania R. Co.'s Appeal, 93 Pa. St. 150; Pittsburg J. R. Co.'s Appeal, 122 Pa. St. 511; Railroad v. Railroad, 124 Mass. 368; N.W. Tel. Ex. Co. v. Railroad, 76 Minn. 334; R. S. 1899, sec. 1272; Railroad v. Depot Co., 125 Mo. 82. (b) Whether the proposed use will ma......
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