Boston & M. Railroad v. Lowell & L. R. Co.

• Decision Date: 15 April 1878
• Parties: Boston and Maine Railroad v. Lowell and Lawrence Railroad Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

124 Mass. 368

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

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, 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 be so taken has been manifested in express terms or by necessary implication.

For instance, a highway cannot be laid out across a navigable river without authority of the Legislature, and such authority is not to be implied from a general statute empowering courts of sessions or county commissioners to lay out highways. Commonwealth v. Coombs, 2 Mass. 489. Commonwealth v. Roxbury, 9 Gray 451, 494, and other cases there cited. In Commonwealth v. Coombs, Chief Justice Parsons said: "The statute gives a general authority to the Sessions to lay out highways; but the statute must have a reasonable construction. This authority therefore cannot be extended to the laying out of a highway over a navigable river, whether the water be fresh or salt, so that the river may be obstructed by a bridge. A navigable river is, of common right, a public highway; and a general authority to lay out a new highway must not be so extended as to give a power to obstruct an open highway already in the use of the public." 2 Mass. 489 at 492.

Upon the same principle, it was held that commissioners of highways could not, under the general power of laying out highways, lay out a highway longitudinally for thirty rods over a turnpike. West Boston Bridge v. County Commissioners, 10 Pick. 270. Commonwealth v. West Boston Bridge, 13 Pick. 195. For other applications of the general principle, see Wellington, petitioner, 16 Pick. 87, 105; Boston Water Power Co. v. Boston & Worcester Railroad, 23 Pick. 360, 398; Proprietors of Locks & Canals v. Lowell, 7 Gray 223; Fall River Iron Works v. Old Colony Railroad, 5 Allen 221, 229.

So it has been held that a special charter from the Legislature, authorizing a corporation to lay out and locate a railroad between two places named, does not confer authority to lay out the railroad upon and along an existing highway, unless it is reasonably necessary to the enjoyment of the franchise granted and the railroad cannot by reasonable intendment be laid out on any other line. Springfield v. Connecticut River Railroad, 4 Cush. 63. Commonwealth v. Old Colony Railroad, 14 Gray 93. In Springfield v. Connecticut River Railroad, Chief Justice Shaw said: "As no company or persons have authority to lay out a railroad, except so far as such power is conferred by the Legislature, the court are of opinion that by a grant of power by a legislative act to lay out a railroad between certain termini, where the precise course and direction are not prescribed, but are left to the corporation to be located between the termini, no authority is given prima facie to lay such railroad on and along an existing public highway longitudinally, or, in other words, to take the road-bed of such highway as the track of their railroad. The two uses are almost, if not wholly, inconsistent with each other; so that taking the highway for a railroad will nearly supersede the former use to which it had been legally appropriated. The whole course of legislation on the subject of railroads is opposed to such a construction. The crossing of public highways by railroads is obviously necessary, and of course warranted; and numerous provisions are industriously made to regulate such crossings, by determining when they shall be on the same and when on different levels, in order to avoid collision; and when on the same level, what gates, fences and barriers shall be made, and what guards shall be kept to insure safety. Had it been intended that railroad companies, under a general grant, should have power to lay a railroad over a highway longitudinally, which ordinarily is not necessary, we think that would have been done in express terms, accompanied with full legislative provisions for maintaining such barriers and modes of separation, as would tend to make the use of the same road, for both modes of travel, consistent with the safety of travellers on both. The absence of any such provision affords a strong inference, that, under general terms, it was not intended that such a power should be given." 4 Cush. 71.

The same principle has been applied to the laying out of one railroad within the location of another already existing. In Housatonic Railroad v. Lee & Hudson Railroad, 118 Mass. 391, the court said: "A charter to build and maintain a railroad between certain points without describing its course and...