Barnes v. Boston & Maine Railroad

• Decision Date: 23 February 1881
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Benjamin S. Barnes v. Boston & Maine Railroad & another

130 Mass. 388

Benjamin S. Barnes v. Boston & Maine Railroad & another

Supreme Court of Massachusetts

February 23, 1881

Argued November 6, 1880

Essex.

Decree sustaining the demurrer and dismissing the bill Affirmed.

J. P Jones & B. B. Jones, for the plaintiff.

S. B Ives, Jr. & G. B. Ives, for the defendants.

Soule J. Endicott & Field, JJ., absent. Lord, J., did not sit.

OPINION

Soule J.

This is a bill for the specific performance by the defendants of two oral agreements made by the Danvers and Georgetown Railroad Company with the plaintiff, by which that corporation undertook to release to the plaintiff certain parcels of land included in its location. The bill alleges that two of these parcels were owned by the plaintiff when the location was filed, and that the others were owned by one Nelson, from whom the plaintiff bought them, subject to the easement of the corporation, and with the right to receive to his own use the compensation due for the land taken.

The bill further alleges that the corporation, not wishing to use and pay for all the land included in its location, agreed orally to release to him the two parcels described in his bill, which were a part of his estate when the location was filed, and the four parcels described, which were a part of the estate of Nelson when the location was filed, the consideration for the agreement being that the plaintiff should not demand nor collect damages for taking the lands so released.

The bill alleges further that in the year 1855, after the filing of said location and after the said oral agreements were made, the Danvers and Georgetown Railroad Company and the Newburyport Railroad Company united and became one corporation under the name of the Newburyport Railroad Company which took the property of the Danvers and Georgetown Railroad Company, with notice of said oral agreements; and that in February 1860 the Newburyport Railroad Company leased its roads, tracks, bridges, franchises, locations and depots to the Boston and Maine Railroad, for the term of one hundred years; and that the lessee took the lease with full knowledge of said oral agreements, and with the understanding between it and its lessor that the lands now in question were not included in the location leased to it.

Thus far the bill states the case of an oral agreement for the transfer of an interest in lands. The taking of the lands in question, by filing a location of the railroad which included them, gave to the railroad corporation an easement in them which entitled it to exclusive possession for the purpose and as a means of exercising the privileges and performing the functions defined by its charter. But the mode of occupation, and the degree of exclusiveness necessary or proper for the convenient exercise of its franchises, were within the absolute discretion of the corporation. Its right was not a fee nor a freehold, but an incorporeal right, subject to which the fee remained in the plaintiff. This right could not be conveyed to a stranger, so as to invest him with authority to occupy the land taken for purposes foreign to the business of the corporation, but was an interest in land which would not pass by an oral agreement. Hazen v. Boston & Maine Railroad, 2 Gray 574. Proprietors of Locks and Canals v. Nashua & Lowell Railroad, 104 Mass. 1.

To take the case out of the operation of the statute of frauds, the plaintiff relies on certain facts, which are stated in the bill, as amounting to such part performance as to give a court of equity jurisdiction to compel a...