Attorney Gen. v. Metropolitan R. Co.

• Decision Date: 21 October 1878
• Citation: 125 Mass. 515
• Parties: Attorney General v. Metropolitan Railroad Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

125 Mass. 515

Attorney General v. Metropolitan Railroad Company

Supreme Court of Massachusetts

October 21, 1878

Suffolk.

Decree affirmed, with costs.

H Jewell & W. Gaston, (J. P. Healy with them,) for the defendant.

J. D Ball, for the Attorney General.

Colt J. Ames & Morton, JJ., absent.

OPINION

Colt J.

This is an information in equity filed by the attorney general, at the relation of Eben Jordan and others, occupiers of land abutting on Washington Street in the city of Boston. As it was first filed, it alleged that the defendant corporation, under the authority of an order of the board of aldermen of the city of Boston, was about to lay down two parallel street railway tracks in Washington Street, between Temple Place and Summer Street, and to run its cars thereon; that it was impossible to lay down these tracks, so as to leave sufficient space for ordinary vehicles to pass between either curbstone and a car upon the nearest track thereto; and that the construction of these tracks and the running of cars thereon would create a public nuisance. It alleged that this order was of no validity, and that the board of aldermen had no power to authorize the creation or continuance of a common nuisance. It asked that the order be declared void, and the corporation restrained from proceeding under it.

A supplemental information alleges that there was no acceptance in writing by the corporation of the order of location, under which the tracks were constructed, within thirty days, as required by its terms, whereby the order became void. It also further alleges that the corporation failed to conform to the order by laying its tracks nearer the easterly curbstone than was therein allowed. There were general demurrers to both informations, and the case comes up on appeal from the decree of the single judge sustaining the demurrers and dismissing the informations.

The jurisdiction of a court of equity to abate an existing, or prevent a threatened nuisance, upon information filed by the attorney general, is limited to those public nuisances which affect or endanger the public safety or convenience, and require immediate judicial interposition. Attorney General v. Tudor Ice Co. 104 Mass. 239. The nuisance must be clearly established. District Attorney v. Lynn & Boston Railroad, 16 Gray 242. And the court will not interfere when the obstruction to the rights of the public is of such a character that it may with equal facility be removed by other constituted authorities and public officers. Attorney General v. Bay State Brick Co. 115 Mass. 431, 438. There must be a want of adequate, sufficient remedy, and the injury to public rights must be of a substantial character, and not a mere theoretical wrong. Attorney General v. Sheffield Gas Co. 3 De G., M. & G. 304. Bigelow v. Hartford Bridge, 14 Conn. 565. Spencer v. London & Birmingham Railway, 8 Sim. 193. Davis v. Mayor, &c. of New York, 4 Kernan 506.

The right to locate or to change the location or position of the tracks of a street railway corporation is given by law to the board of aldermen of the city in which such corporation is authorized to construct its road. St. 1871, c. 381, §§ 14, 15. The same board is empowered to make regulations for operating the road and keeping the streets occupied by its location in repair. §§ 18, 19. The corporation is made liable over to the city for any defect or want of repair in that part of any street occupied by its tracks; § 22; and is forbidden to obstruct public travel, wilfully or negligently. § 30. The board of aldermen of the city of Boston are also surveyors of highways, and thus the full control of the streets, with the power to locate tracks and to regulate the running of the cars, is left to them.

The information alleges that the board of aldermen "undertook to pass and did pass, so far as they had the power to pass," the order complained of. There is no allegation of informality or want of validity in the passage of the order. The complaint, as set forth, is that the use of these tracks will produce unusual obstruction to public travel, and therefore cannot be legally authorized by the board of aldermen, under the laws of this Commonwealth.

The power of the Legislature to authorize the construction of a street railway, without the consent of the adjoining proprietors, and without compensation in damages to the owners of the soil over which the highway is located, has long been exercised in this Commonwealth. It was early recognized in the case of Commonwealth v Temple, 14 Gray 69, where it was declared by Chief Justice Shaw that "all public easements, all accommodations intended for the common and general benefit, whatever may be their nature and character, are under the control and regulation of the Legislature, exercising the sovereign power of the state." The future alteration and use of public streets for public...