175 Mass. 246 (1900), Natick Gaslight Co. v. Inhabitants of Natick

Citation:175 Mass. 246, 56 N.E. 292
Opinion Judge:HAMMOND, J.
Party Name:NATICK GASLIGHT CO. SAME v. INHABITANTS OF NATICK. SAME v. BOSTON & A. R. CO.
Attorney:[56 N.E. 292] R. P. Clapp, for petitioner. P. H. Cooney and H. C. Mulligan, for respondents.
Case Date:February 28, 1900
Court:Supreme Judicial Court of Massachusetts
 
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Page 246

175 Mass. 246 (1900)

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

Page 247

[56 N.E. 292] 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

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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 [56 N.E. 293] 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...

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