Agostini v. North Adams Gaslight Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: SANDERSON
• Citation: Agostini v. North Adams Gaslight Co. , 163 N.E. 745, 265 Mass. 70 (Mass. 1928)
• Decision Date: 27 November 1928
• Parties: AGOSTINI v. NORTH ADAMS GASLIGHT CO. FASANI et al. v. SAME. LAMOUREUX et al. v. SAME.

265 Mass. 70

163 N.E. 745

AGOSTINI

v.NORTH ADAMS GASLIGHT CO.

FASANI et al.

v.SAME.

LAMOUREUX et al.

v.SAME.^*

Supreme Judicial Court of Massachusetts, Berkshire.

Nov. 27, 1928.

Appeal from Superior Court, Berkshire County; W. A. Burns, Judge.

Consolidated suits by Victor A. Agostini, by Margaret Fasani and another, and by Fredelin Lamoureux and another, against the North Adams Gaslight Company. Decrees for plaintiffs, and defendant appeals. Affirmed.E. K. McPeck, of Adams, and Stoddard, Ball & Bartlett, of Greenfield, for appellant.

E. D. Getman, of North Adams, for appellee Agostini.

W. F. Barrington, of North Adams, for appellees Fasani and another.

J. L. Burns, of North Adams, for appellees Lamoureux.

SANDERSON, J.

These three suits, brought to compel the defendant to remove wires and a tower from land of the respective plaintiffs and for other relief, were consolidated by order of the superior court and referred to a master.

The master found that the defendant, in 1925, entered upon the land described in the respective bills, dug up the soil to the depth of 5 feet, and in this excavation constructed a concrete block approximately 16 feet square. On this base a metal tower about 45 feet high was erected, from which are suspended three bare copper wires, each designed to carry 22,000 volts of electricity from a supply plant in Adams to the defendant's distributing station in North Adams. The base is so situated that a part of it is on land alleged to be owned by the plaintiffs respectively. The wires are so placed that one crosses one of these parcels of land and two cross the others. A part of the base is within 15 feet of the house on one lot and about 19 feet from a house on one of the other lots. The entry upon the land by the defendant was made and the work done with the written permission previously obtained of the Boston & Maine Railroad, but against the protest of the several plaintiffs. The parties stipulated that for the purposes of these cases, if the Troy & Greenfield Railroad Company took a fee to the locus by the filing of its plan of location, that fee is now vested in the Boston & Maine Railroad, and that if the court should decide that the Boston & Maine Railroad did not have a fee in the locus, the parties reserve the right to be heard in this or some other appropriate proceeding on the question whether the Boston & Maine Railroad had an easement in the locus. The plaintiffs' claims for damages were waived.

The judge found that the Boston & Maine Railroad never acquired an interest greater than an easement, and the title in fee to the real estate in dispute was in the plaintiffs respectively; that the defendant had no right to do the acts complained of, and the Boston & Maine Railroad had no right to authorize them. He entered a decree that the defendant be ordered to remove the tower, its foundation or base, all uprights and arms attached to the tower and the wires connected therewith, and to restore the land to its condition at the time of entry. In each case the defendant appealed from this decree.

The fee in the land alleged to be owned by the plaintiffs respectively is in them and they are entitled to the relief sought unless the Troy & Greenfield Railroad Company by filing its location with the county commissioners of Berkshire county in 1850 acquired a title in fee to the real estate described therein. The only question argued and decided is whether such title was taken by the railroad company.

The Troy & Greenfield Railroad Company was incorporated by virtue of St. 1848, c. 307. It was authorized to locate, construct and maintain a railroad through designated towns, in the counties of Franklin and Berkshire, to some point on the line of the state of New York or of Vermont convenient to meet or connect with any railroad that may be constructed from any point at or near the city of Troy in the state of New York. The corporation was given the powers and privileges and subjected to the duties, liabilities and restrictions set forth in Rev. St. 1836, c. 44, and that part of chapter 39 relating to railroad corporations. By sections 54, 55, of the latter chapter, a railroad was authorized to lay out its road not exceeding five rods in width and to ‘purchase or otherwise take any land. * * * ’ The taking is accomplished by filing with the county commissioners of each county a description of the location in that county. Rev. St. c. 39, § 75; Hazen v. Boston & Maine Railroad, 2 Gray, 574, 579, 580. It did not appear from the terms of the taking whether the contemplated road was to be built on the surface of the land or whether the point of destination was to be reached in part by tunneling. The route necessarily required crossing or tunneling the Hoosac Mountain and crossing or tunneling the locus. Tunneling was decided upon and two tunnels were constructed, one called the Hoosac Tunnel and the other, about one mile west of this, called the Little Tunnel. The latter is about 400 feet long, with the top of the tunnel approximately 40 feet below the surface of the land. The structures of which the plaintiffs complain are over the Little Tunnel and within the lines of the location filed by the Troy &...