Bay State Brick Co. v. Foster

• Decision Date: 04 September 1874
• Citation: 115 Mass. 431
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Bay State Brick Company v. Joshua T. Foster & others. Attorney General v. Bay State Brick Company

115 Mass. 431

Bay State Brick Company v. Joshua T. Foster & others. Attorney General v. Bay State Brick Company

Supreme Court of Massachusetts

September 4, 1874

[Syllabus Material] [Syllabus Material]

Suffolk. The first case was a bill in equity against the surveyors of highways in the town of Medford. The bill alleged in substance that the plaintiff corporation was and long had been engaged in the manufacture of bricks on its own land that it owned the land on both sides of Riverside Avenue, a highway in the town of Medford, and the fee in the soil of the avenue itself, subject only to the public easement; that for the purpose of reaching the railroad, by which the bricks of the corporation were carried to Boston, it was obliged to lay iron rails across said highway, on which its cars loaded with bricks could run; that this track was laid with the consent of the town, was no obstruction or inconvenience to the use of the way, and was indispensable to the prosecution of the company's business; that the defendants threatened to take the rails up, not for the benefit of the public, or in the discharge of any public duty, but instigated by the private malice and for the selfish purposes of an individual and in order to extort money from the corporation. The bill prayed for an injunction against the removal of the rails and for general relief.

The defendants in their answer demurred to the bill, for the reason that the plaintiff had a plain, adequate and complete remedy at law, and averred that the railroad track was an inconvenience, and an unlawful obstruction to public travel; and that in pursuance of their right and duty, as surveyors of highways, they had ordered it to be removed.

The second case was an information by the attorney general at the relation of the surveyors of highways, charging the Bay State Brick Company with having unlawfully obstructed a public highway in Medford, called Riverside Avenue, by laying and maintaining a railway across it, and by using said railway for the transportation, by means of locomotive engines, of cars and wagons loaded with bricks, and thereby making the highway unsafe and inconvenient; that the corporation had been ordered by the surveyors of highways to remove the track, and refused, and still refuse, to do so. The prayer was for an injunction forbidding the maintenance and use of said track.

The answer contained a demurrer, and also set up in defence the matters stated in the bill in the first case.

The two cases were heard together, before Ames, J., who reserved them for the consideration of the full court, upon a report, in substance as follows:

Evidence was offered to prove the title of the plaintiff in the first action, to the soil in the highway and on both sides of it; and numerous witnesses on the part of the Bay State Brick Company were called and sworn, but before their examination, the counsel for that company was called upon to explain what he proposed to prove by them; and it appearing that the claim on the part of the Commonwealth and of the surveyors was, that the matters and things proposed to be proved would not sustain the corporation in its defence in the second case, or enable it to maintain the case stated in the first case, it was proposed and ordered by the court that the cases should be reserved upon the pleadings and the various offers of proof submitted by the said corporation.

The counsel for the corporation then offered to show that the rails were originally laid down upon application to, and with leave from, the highway surveyors of the town of Medford; and that they have remained and been used with the knowledge, sanction and approval, express and implied, of the successive boards of selectmen or highway surveyors of the town, from 1863 down to the summer of 1873, when the selectmen first made complaint; that this interference by the selectmen was expressly stated to the company's agent to be, not because they believed the rails to be any incumbrance or hindrance or obstruction to the highway, or that they rendered it unsafe or inconvenient, but because a man named Wellington complained of them, and insisted upon their doing it; that Wellington, assuming to act in behalf and with the authority of the town, communicated to the plaintiff in the first suit, that if it would pay him a sum of money, it might have the use of the track.

It was not contended that the selectmen went to the company, or authorized Wellington to go in their behalf, understanding that he was to get money for them. The company's offer was to prove that the whole thing was stirred up and started by Wellington, at his instigation, from corrupt motives, and that the surveyors were made his tools, unwittingly perhaps. And it was insisted that such was the proper inference from the facts proved or offered in proof.

The company further offered to prove that, as a matter of fact, the mode of occupation and use of the highway were entirely unobjectionable; that there was no plausible pretext or cause for any interference on the part of the surveyors of highways; that there was no justification in fact for their interference, and no reason by which they would be justified in interfering, in the honest belief that it was necessary for the protection of the public; that in the summer of 1873, at the instance of said Wellington, the surveyors caused the rails to be removed; that afterwards, upon the request and at the expense of the brick company, a written opinion on the subject was obtained from Sidney Bartlett, Esq., and communicated to the defendants; and the track was relaid by the company in pursuance of and in conformity to that advice; and that it was so laid that it cannot reasonably and in fact be said to obstruct the way, or to come within the Gen. Sts. c 44, § 8; that this relaying was with the sanction and approval of the surveyors, and that they could not honestly and reasonably consider the track so relaid to be an obstruction coming within the section above referred to; and that neither in fact nor in law was it a nuisance; that after the rails were so laid the company proceeded to use them; and that then, without any change of facts or circumstances, and without any official action or vote of the board at any meeting, the surveyors notified the company to remove the rails by October 18, informing it that if it did not do so, the surveyors would do it themselves; and they were about to do so when the bill was filed.

The corporation also offered to show such a general state of facts and circumstances as would justify the court in inferring that the action and proposed action of the board...