City of Boston v. Inhabitants of Brookline

• Decision Date: 31 March 1892
• Parties: CITY OF BOSTON v. TOWN OF BROOKLINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 172

30 N.E. 611

CITY OF BOSTON v. TOWN OF BROOKLINE.

Supreme Judicial Court of Massachusetts, Norfolk.

March 31, 1892

COUNSEL

A.J. Bailey, for plaintiff.

M. & C.A. Williams, for respondent.

OPINION

MORTON J.

The question in this case is whether the right to exercise the power of eminent domain given to the city of Boston for the purpose of laying its water-pipes excludes the exercise of the right of eminent domain by the town of Brookline for the purpose of laying out a way over the same land in which the city of Boston has laid said water-pipes. There is no doubt that land devoted to one public use may be taken by authority of the legislature for another public use. Old Colony R Co. v. Framingham Water Co., 153 Mass. 561, 27 N.E. 662 and cases cited. This follows from the nature of the right of eminent domain. Eastern R. Co. v. Boston & M.R. Co., 111 Mass. 125. In the present case, however, the town of Brookline does not rely upon a special act authorizing it to lay out a way over the land taken by the city of Boston to lay its water pipes in, but upon the general authority given by Pub.St. c. 49, to towns to lay out ways. Under such an authority, a town could not lay out a way across a navigable river, or longitudinally along a railroad, because it would essentially impair or interfere or be inconsistent with a public use already existing or specially authorized. Kean v. Stetson, 5 Pick. 492; Wellington, Petitioner, 16 Pick. 87, 103; West Boston Bridge v. Middlesex Com'rs, 10 Pick. 270; Com. v. Haverhill, 7 Allen, 523; Boston & M.R. Co. v. Lowell & L.R Co., 124 Mass. 368; Springfield v. Railroad Co., 4 Cush. 63; Easthampton v. County Com'rs, (Mass.) 28 N.E. 298. Nor for the same reason could a corporation, under an act authorizing it to construct a railroad between two termini, locate its road along an existing highway, unless such authority was to be found in the act, or arose by reasonable intendment from the application of the act to the subject-matter. Springfield v. Railroad Co., supra; Housatonic R. Co. v. Lee & H.R. Co., 118 Mass. 391; Com. v. Old Colony & F.B.R. Co., 14 Gray, 93. On the other hand, if the location of a way over land already devoted to a public use would not be inconsistent or materially interfere with such use, there would seem to be no good reason, in the absence of any provision expressly or by implication forbidding it, why a way might not be laid out over such land under the general authority given to cities and towns or county commissioners. Wellington, Petitioner, supra; Boston Water-Power Co. v. Boston & W.R. Co., 23 Pick. 361; Railroad Co. v. Boston, 140 Mass. 87, 2 N.E. 943; Easthampton v. County Com'rs, supra.

The question whether such interference or inconsistency would arise is not to be settled with reference to every possible manner in which the land might be used for the purpose for which it had been acquired, but with a reasonable regard to the way in which it would naturally and reasonably be used in putting it to that purpose. Springfield v. Railroad Co., supra. Nothing in St.1865, c. 131, under which the pipes referred to in this case were laid, or in the earlier acts to which that was an addition, either expressly or impliedly prohibits the laying out of a way over land taken to lay pipes in. St.1859, c. 222; St.1850, c. 316; St.1849, c. 187; St.1846, c. 167. The provisions in several of the acts relating to the digging up of roads to lay, maintain, and repair the pipes, and subjecting the city of Boston to such regulations as the selectmen of Brookline should prescribe as to the time, place, and manner of digging up the streets, and making the city of Boston liable to Brookline for expenses incurred by it through the want of repair in any street due to the laying or maintaining or repairing any pipes, are such as would naturally be adopted to protect the city's rights, both as to existing streets and streets that might afterwards be laid out over said pipes. The nature of the interest or right acquired by the city of Boston in the land taken does not require that the possession should be exclusive. Harback v. Boston, 10 Cush. 295.

The facts found by the justice who reported the case show that there is no inconsistency...