Blodgett v. Worcester Consol. St. Ry. Co.
| Decision Date | 17 May 1906 |
| Citation | 192 Mass. 106,78 N.E. 222 |
| Parties | BLODGETT et al. v. WORCESTER CONSOL. ST. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Arthur P. Rugg, for petitioners.
Warren & Garfield and Clement R. Lamson, for respondent.
The demurrer admits the substantial allegations of the bill, by which without rehearsing its entire statutory title the respondent is described as a corporation duly organized to operate, and actually operating a system of street railways a part of which is located within the municipal limits of the city of Worcester. By purchase it has lawfully succeeded to all the rights and franchises formerly granted to the Worcester, Leicester & Spencer Street Railway Company, one of its predecessors in title. Sp. Laws Mass. 1893, p. 976, c 338; St. 1897, p. 241, c. 269. At the date of transfer the tracks of this railway were laid, and the road operated in the public ways described in the bill under an original location regularly granted by the board of aldermen subject to certain restrictions, which among other provisions not involved in the present controversy, required the company to lay and maintain paving within these streets according to certain specifications to which we shall later refer. Whatever questions may now arise over the construction or validity of this part of the order, the company complied with its terms although by compliance neither it, nor the defendant is estopped to contest its legality. Keefe v. Lexington & Boston Street Railway Co., 185 Mass. 183, 185, 70 N.E. 37. Under the most favorable construction the company was to assume the expense of paving where the streets were unpaved, either for the full width of two streets, and between the track or tracks, and for a limited distance outside of the rails as to the remaining streets, and also to repave with the same material the streets already paved, but the surface of which would have to be removed in the construction of its roadbed. This section of the order, however, is more comprehensive for the opening words of the second paragraph 'shall lay and maintain paving' indicate a broad purpose, and to overcome their inclusiveness the defendant contends that by the particular description of streets, and the kind of pavement to be used that follows, this general requirement is limited to paving only, and excludes the cost of subsequent maintenance. If one of the objects to be accomplished was the original paving, or repaving of these streets, their subsequent maintenance would call also for an expenditure by the city to keep them in proper repair. That by reason of their use by the company they would be subjected to an increased servitude, which ordinarily would require more frequent or extensive repairs entailing corresponding expense well may have been considered by the board when settling the conditions of the grant.
If possible all the terms of a written instrument are to be given effect, and this sentence may be considered as fairly indicative of the final determination of the aldermen, while the sentences which follow are to be viewed as in the nature of specifications defining the quality of the material, and the extent of the work, and although in one instance repeated, to declare in connection with each group of streets that when laid the pavement should be kept in repair by the company was unnecessary as this general provision already had been sufficiently stated. Even if there was a seeming repugnancy between the principal and subordinate clauses, the last would have to yield, because if given the effect for which the defendant contends these clauses would defeat the plain purpose which had been already sufficiently declared. Morrill & Whiton Construction Co. v. Boston, 186 Mass. 217, 220, 71 N.E. 550. It also is a principle of construction that if uncertain or ambiguous terms are found in a statute or written instrument conferring a public grant they are construed strictly against, rather than in favor of the grantee, and unless by omission of all reference to the subject, or an explicit statement to the contrary, the city should not be required to assume a more onerous burden when manifestly intending to place it upon the company, unless in unmistakable language, which we do not find, the order was so framed. Com'rs on Inland Fisheries v. Holyoke Water Power Co., 104 Mass. 446, 449, 6 Am. Rep. 247; Atty. Gen. v. Jamaica Pond Aqueduct Co., 133 Mass. 361, 365; Com. v. Boston Terminal Co., 185 Mass. 281, 287, 70 N.E. 125. The position, however, is taken that if this construction is adopted the obligation imposed either to pave, or to maintain, is unenforceable as the board of aldermen were not empowered to impose such restrictions, or to exact their performance, and the most important part of the able and learned argument of counsel for the respondent is addressed to this question. When the location was granted, Pub. St. c. 113, was the law governing such grants. Under the provisions of section 7, the board of aldermen and selectmen of towns were authorized to grant original locations to street railway companies subject to such 'restrictions' as they deemed the public interest required. This word when used in connection with a grant of an interest in real property has been judicially considered as being the legal equivalent of conditions, and either term may be used to denote a limitation upon the full and unqualified enjoyment of the right or estate granted. Skinner v. Shepard, 130 Mass. 180; Ayling v. Kramer. 133 Mass. 12; Clapp v. Wilder, 176 Mass. 332, 57 N.E. 692, 50 L. R. A. 120. In St. 1898, p. 748, c. 578, § 26, which repealed Pub. St. c. 113, § 7, this construction was apparently adopted by the Legislature in section 13 (page 743) as 'restrictions' disappear, and the phrase 'terms, conditions and obligations' is substituted. But even if having this legal and statutory signification, the inquity whether the conditions could be legally incorporated with the order of location by way of regulating the manner in which the franchise was to be enjoyed is not changed. It was not until St. 1864, p. 155, c. 229, that the first general law concerning street rail ways was enacted. The earlier acts granting charters of incorporation usually contained provisions more or less general as to any obligation of the corporation to keep the highways in which tracks were laid in repair. Of this class of requirements the act incorporating the...
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