Boston & A.R. Co. v. City of Cambridge
| Decision Date | 21 June 1893 |
| Citation | 159 Mass. 283,34 N.E. 382 |
| Parties | BOSTON & A.R. CO. v. CITY OF CAMBRIDGE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Saml. Hoar, for petitioner.
C.J McIntire, for respondent.
This petition for the assessment of damages caused by the laying out of Front street, in Cambridge, across the petitioner's railroad, on July 20, 1888, under St.1882 c. 155, and St.1887, c. 282, comes before us upon a report from the superior court presenting questions raised by both parties.
1. Considering first the respondent's contention that the laying out of a highway across an existing railroad is not such an appropriation of individual property to public uses as to require that the owner shall receive a reasonable compensation therefor, the contrary doctrine is well settled in this commonwealth, and we see no occasion to re-examine at length the grounds upon which it has been placed. Parker v. Railroad Co., 3 Cush. 107, 113; Boston & L.R. Co. v. Salem & L.R. Co., 2 Gray, 1; Central Bridge v. Lowell, 4 Gray, 474; Old Colony & F.R.R. Co. v. Plymouth Co., 14 Gray, 155; Grand Junction Railroad & Depot Co. v. Commissioners, Id. 563; Massachusetts Cent. R. Co. v. Boston, C. & F.R. Co., 121 Mass. 124. See, also, Morris Canal & Banking Co. v. State, 24 N.J.Law, 62, 70; Philadelphia, W. & B.R. Co. v. Philadelphia, 9 Phila. 563, 567; Northern Cent. R. Co. v. Baltimore, 46 Md. 425; Detroit v. Detroit & H. Plank-Road Co., 43 Mich. 140, 5 N.W. 275; Railway Co. v. Sharpe, 38 Ohio St. 150; Chicago & N.W.R. Co. v. Chicago, (Ill. Sup.) 29 N.E. 1109. As said by Judge Cooley in Detroit v. Detroit & H. Plank-Road Co., ubi supra, "It cannot be necessary, at this day, to enter upon a discussion in denial of the right of the government to take from either individuals or corporations any property which they may rightfully have acquired." Evidence of the value of the land taken was relevant, and rightly admitted, and the ruling that the petitioner was entitled to recover for the fair value of its land taken, subject to its use for railroad purposes, was correct.
2. The other elements of damages allowed in the verdict may be classed together, as the expense of making and maintaining in repair the appliances and structures designed to make the crossing safe and convenient for the traffic of the railroad and of the highway. It is the duty of the petitioner, under the statutes and the order of the board of railroad commissioners, to make and keep in repair the planking, paving, cattle guards, fences, signboards, and posts, and the gates; and there was also evidence tending to show that the gatehouse and fences were necessary, in fact. Aside from the gates and the gatehouse, the expenses of making and maintaining all these structures and appliances were held in Old Colony & F.R.R. Co. v. Plymouth Co., 14 Gray, 155, to be proper elements of damage; and the expenses of erecting and maintaining the gates--and of the gatehouse, if it was a necessary structure--are within the reason of that decision, and also of the rule given in Massachusetts Cent. R. Co. v. Boston, C. & F.R. Co., 121 Mass. 124, that a railroad corporation, across whose road a highway is laid, has the right "to recover damages for the injury occasioned to its title or right in the land occupied by its road, taking into consideration any fences or structure upon the land, or changes on its surface, absolutely required by law, or in fact necessary to be made by the corporation injured, in order to accommodate its own land to the new condition." This requires us to allow in favor of the petitioner all the elements included in the verdict, unless we decline to follow those decisions. In discussing that question we assume that all these expenses belong to the class which the legislature has the right to impose without consideration, either upon the railroad company, or upon the instrumentalities charged with building and repairing highways; and this irrespective of any reserved right to amend corporate charters, or to control mere agencies of the government. Thorpe v. Railroad Co., 27 Vt. 140; Munn v. Illinois, 94 U.S. 113; Beer Co. v. Massachusetts, 97 U.S. 25; Stone v. Mississippi, 101 U.S. 814; Butchers' Union, etc., Co. v. Crescent City, etc., Co., 111 U.S. 746, 4 S.Ct. 652; Com. v. Intoxicating Liquors, 140 Mass. 287, 3 N.E. 4; Veazie v. Mayo, 45 Me. 560; Railroad Co. v. Deering, 78 Me. 61, 2 Atl.Rep. 670; Boston & M.R. Co. v. County Com'rs, 79 Me. 386, 10 Atl.Rep. 113. How such burdens shall be distributed is a question of practical economics, within the province of legislation. Such expenses imposed upon railroad corporations, if charged to operating expenses, are defrayed in payments of fares and freights by those who use the railroad, while, if imposed upon municipalities, they are paid out of the taxes. Which course places the burden where it ought to rest is fairly a legislative question. The fact that the safety of railroad traffic requires that the railroad company only shall be allowed to do work within the lines of its location has constantly tended to induce legislatures to impose upon railroad companies the duty of maintaining the roadway and all structures and appliances necessary for safety and convenience at such crossings, and in some states the courts have refused to allow the cost of making or maintaining such structures as an element of damages to be recovered by railroad corporations for the crossings of railroads by highways. In Maine, if a new way is laid across an existing railroad at grade, the statute directs that the expense of building and maintaining so much of the way as is within the limits of the railroad shall be borne by the railroad company. Rev.St.Me.1883, c. 18, § 27; St.1878, c. 43, § 1; St.1883, c. 167, § 2. But at common law the crossing of a new way with one already in use must be made with the least possible injury to the old way, and whatever structures are necessary must be erected and maintained at the expense of the party making the new way, and if the old way cannot be crossed without damage the damage must be ascertained and paid. Perley v. Chandler, 6 Mass. 454; Richardson v. Bigelow, 15 Gray, 156; Lowell v. Proprietors, 104 Mass. 22; King v. Kent, 13 East, 220; King v. Lindsey, 14 East, 317, 320; King v. Kerrison, 3 Maule & S. 526, 532; Morris Canal & Banking Co. v. State, ubi supra; Northern Cent. R. Co. v. Baltimore, ubi supra.
A brief historical statement will show that the cases which we are asked to reconsider are, so far as they support the verdict rendered in the present cause, not only consonant to the principles of the common law, but that they are in accord with, and give a practical operation to, the expressed will of the legislature. The earlier railroad charters of this commonwealth required railroad companies to construct and maintain the crossings of existing ways, canals, and navigable waters, and were silent as to the laying out of new ways across railroads. See St.1825, c. 183; St.1829, cc. 25, 93, 94; St.1830, c. 4; St.1831, cc. 27, 55-57, 72; St.1832, cc. 49, 97; St.1833, cc. 109, 116, 118; St.1835, c. 111. All but the first two contained a provision, since made part of the General Laws, that the commonwealth might purchase the road upon a 10 per cent. basis, (see Rev.St. c. 39, § 84; Gen.St. c. 63, § 138; St. 1874, c. 372, § 180; Pub.St. c. 112, § 7;) and the presence of this provision implies that the legislature will discriminate with some care in imposing upon the corporations burdens which may diminish the value of the reserved rights of the commonwealth. In the general acts defining the rights and duties of railroad corporations, passed before the adoption of the Revised Statutes, (St.1883, c. 187; St.1834, c. 137; and St.1835, c. 148,) the cost of alterations of existing ways to facilitate their crossing at different levels or otherwise was imposed upon the railroad corporations, (St.1833, c. 187, §§ 5, 6,) and it was made their duty to ring the bell, and to place and maintain signboards, at each crossing, and, if necessary for the security of the public, to erect gates across the railroad, with an agent to open and close them, (St.1835, c. 148, §§ 4-6.) These provisions were substantially re-enacted in Rev.St. c. 39, with a new provision, (Rev.St. c. 39, § 69,) that if, after the making of a railroad, a new way should be laid across it, the way should in all cases be so made as not to obstruct or injure the railroad. St.1842, c. 22, gave county commissioners power to require railroad companies, at their own expense, to separate the grades at any crossing. St.1846, c. 271, forbade the construction of crossings at grade, unless by authority of the county commissioners, in which cases they were to prescribe the manner of constructing the crossing, and might order gates, and an agent to operate them. This statute also imposed upon railroad companies the duty of erecting and maintaining fences and cattle guards. St. 1849, c. 222, extended the provisions requiring signboards, and providing for the ordering of gates, to all grade crossings of any way or traveled place, and allowed county commissioners to direct the gates to be built across the way, instead of across the railroad, and also gave them original jurisdiction of all questions touching obstructions to ways by the construction or operation of railroads.
This was the state of the statute law when the rights of the parties to the earlier of the two petitions which were before the court in the case of Old Colony & F.R.R. Co. v. Plymouth Co., ubi supra, were fixed by the laying out of a highway across the railroad, in January, 1852; the petition for damage having been filed on June 30, 1852. The other highway for the laying out of...
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