Natick Gaslight Co. v. Inhabitants of Natick

• Citation: 56 N.E. 292,175 Mass. 246
• Parties: NATICK GASLIGHT CO. SAME v. INHABITANTS OF NATICK. SAME v. BOSTON & A. R. CO.
• Decision Date: 28 February 1900
• Court: United States State Supreme Judicial Court of Massachusetts

175 Mass. 246

56 N.E. 292

NATICK GASLIGHT CO. SAME v. INHABITANTS OF NATICK. SAME v. BOSTON & A. R. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

February 28, 1900

COUNSEL

R. P. Clapp, for petitioner.

P. H Cooney and H. C. Mulligan, for respondents.

OPINION

HAMMOND J.

By reason of the abolition by proceedings under St. 1890, c 428, of certain grade crossings of the streets and railroad in Natick, the petitioner was deprived of certain land, and was put to expense in altering some of its mains legally existing in the public streets. The land taken consisted of a parcel not included in any street, and an adjoining parcel included in the location of Harris street. This latter street, upon which the land of the petitioner abutted, and into which, from its gas works, its chief distributing main ran, was discontinued, and the land formerly included within its location was taken for the new location of the railroad which was built at a grade much below the former grade of the street. This compelled the petitioner, at an expense of $430, to substitute for the Harris street main a new one in another locality. Of this loss $40 was in respect of so much of the main as lay in the petitioner's own land in Harris street. By the raising of the grade of Main street, two blocks distant from this locality, the petitioner was obliged, at an expense of $1,085.51, to take up and relay its main in that street. The questions raised by the report are whether the company can recover, by petitions under St. 1890, c. 428, § 5, as amended by St. 1891, c. 123, § 1, its loss of $1,085.51 on account of the Main street main, and its loss of $430 on account of its Harris street main, and, if it cannot recover the whole of the latter loss, whether it can recover the $40, which represents its loss in respect of so much of its Harris street main as lay in its own land in Harris street.

1. As to the expense with respect to the Main street pipe. The provision for the assessment of damages in the case of a change of grade of the highway under this statute is found in section 5, which, so far as material to this question, is as follows: 'All damages sustained by any person in his property by the taking of land for, or by the alterations of the grade of, a public way,' in case the parties cannot agree, may be determined by a jury 'in the same manner and under like rules of law as damages may be determined when occasioned by the taking of land for the locating and laying out of * * * public ways.' Whether the phrase, 'in the same manner,' etc., is to be considered as referring to the mode of ascertaining the damage already given in the preceding part of the statute, or as descriptive of the kind of injury for which damages may be assessed (see Rand v. City of Boston, 164 Mass. 354, 41 N.E. 484; Sheldon v. Railroad Co., 172 Mass. 180, 51 N.E. 1078), it is certain that, so far as material to the question now before us, the language of the whole section is no broader than the provisions of Pub. St. c. 49, §§ 14, 16; for by the former of these two sections damage 'sustained by any persons in their property' by change of grade of the street is given, and by the latter section it is provided that, in estimating such damage, 'regard shall be had to all the damage done to the party, whether by taking the property or injuring it in any manner.' It becomes necessary to inquire into the nature of the loss sustained by the company. The pipe was personal property, and the title to it did not change. Com. v. Lowell Gaslight Co., 12 Allen, 75. By reason of the change of grade it was no longer useful as originally placed. But it was still the property of the petitioner. The petitioner, as against the landowner, had in itself no easement. Its only right was, as stated by Bigelow, C.J., in Com. v. Lowell Gaslight Co., ubi supra, 'to use land, the whole beneficial use of which had been previously taken from the owner, and appropriated for a public use in such manner that no nuisance shall be committed, no disturbance created to the easement of the public, and no injury be done to' other parties. It is permitted to share in the general use for which the public have paid. But whether this right, although not rising to the dignity of an easement, be a valuable one, the loss of which is a damage to the petitioner, within the doctrine laid down in Marsden v. City of Cambridge, 114 Mass. 490, it must, nevertheless, be regarded as subordinate to the general purpose for which the land was originally taken, to wit, public travel, and must yield to the necessities of that purpose. The permission to lay down pipes in the public ways, whether or not, so long as the way remains public, and the pipe does not interfere with the other general public uses, it be revocable, must be held to have been granted originally upon the condition that the pipes, neither at the time of the laying nor thereafter, shall interfere with the public travel upon the way as then existing, or as it may thereafter be changed to meet the reasonable exigencies of such travel. To hold otherwise, and to say that whenever, under the statute permission, a gas pipe is laid in a public way, the pipe cannot be disturbed, even to make such changes as are required by public travel, except under the right of eminent domain, is to make what is a merely subordinate use paramount to the great important use for which the land is taken. Such a construction seems to us unreasonable. Under this construction it is plain that no legal right to property of the petitioner was invaded, and, even if it be claimed that the language of the statute is broad enough to give damages in some cases for injuries suffered, not as the consequence of the loss or invasion of a legal right, still we cannot apply any such rule here. In removing its pipes the petitioner was simply complying with an implied condition annexed to the permission under which its pipes were laid. It had agreed in law that its pipes should lie in the way at its peril, so far as respects the exigencies of public travel. It was, therefore, not entitled to recover for the expense as to the pipe in Main street.

2. As to the loss of $430 in respect of the Harris street main. There is an additional reason why this loss cannot be recovered. It was due neither to a taking of land for, nor to the alteration of the grade of, a public way, and the town could be held only on the ground that the damage was occasioned by the discontinuance of the street. While the statute as first enacted contemplated that by proceedings under it public ways would be discontinued, it did not expressly mention the subject of damages by such a discontinuance. See St. 1890, c. 428, §§ 4, 5. In the year 1891 an amendment was enacted 'so as to provide for the assessment of damages in case of the discontinuance of a public way.' This amendment does not say that all damages sustained by any person in his property by the discontinuance of a public way in effecting the abolition of a grade crossing shall be paid for. The amendment was by inserting certain words in St. 1890, c. 428, § 5, and we quote the beginning of the section as amended: 'Sec. 5. All damages sustained by any person in his property by the taking of land for, or by the alterations of the grade of, a public way, or by an abutter thereon, for the discontinuance of such public way, to the same extent as damages are now recoverable by law by abutters on ways discontinued by towns, shall primarily be paid by the city or town.' The new obligation is only to abutters on the discontinued way, and for such damages as are recoverable by law by abutters on ways discontinued by towns. The gaslight company was, in the language of the statute, an abutter on the discontinued Harris street, and the further question is whether its loss with respect to the Harris street main was...