Boston & L.R. Corp. v. Middlesex County Com'rs

• Decision Date: 20 May 1908
• Citation: 85 N.E. 108,198 Mass. 584
• Parties: BOSTON & L. R. CORP. et al. v. MIDDLESEX COUNTY COM'RS (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

198 Mass. 584

85 N.E. 108

BOSTON & L. R. CORP. et al. v. MIDDLESEX COUNTY COM'RS (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

May 20, 1908

COUNSEL

Coolidge &amp Hight (W. H. Coolidge, C. A. Hight, and Geo. S. Selfridge, of counsel), for petitioners.

George L. Mayberry and Frank W. Kaan, City Sol., for respondents.

OPINION

KNOWLTON C.J.

At a point about 300 feet southeasterly of Lowell street in the city of Somerville, the Lexington & Arlington Branch of the Boston & Lowell Railroad, now operated by the Boston & Maine Railroad, diverges from the main line, so that the two lines of track when they cross Lowell street are about 150 feet apart. The Lexington & Arlington branch was built under St 1870, p. 297, c. 386, which provided that all crossings of highways should be at grade, unless a different mode of crossing should be ordered by the Railroad Commissioners. In the proceedings before the county commissioners which are called in question, there was a dispute between the parties as to whether Lowell street was a public way, but the commissioners found that it was. No crossing was ever constructed at the point where this branch of the railroad passes over Lowell street, but the railroad was constructed at a depth of several feet below the surface of the adjacent land.

This being the situation, and the place never having been used as a crossing for teams, the mayor and aldermen of Somerville presented a petition to the county commissioners, averring that the public way at that point was so crossed that the railroad obstructed the way, and that the corporation refused and neglected to keep in repair a bridge or other structure which was required and necessary at the crossing, and asked that they be ordered to make repairs.

It is very plain that this petition was brought under Rev. Laws, c 111, § 132, which gives the county commissioners jurisdiction to order repairs to be made by the railroad corporation at a crossing in cases such as this was averred to be. Under this petition the county commissioners ordered the present petitioners to separate the grades of the street and the railroad, to construct a bridge over the railroad, and a street to pass over the railroad on the bridge.

This section of the statutes did not authorize the making of an order of this kind, nor had the county commissioners jurisdiction, upon any form of petition or under any statute, to order a separation of the grades of the railroad and the way at this point. If, notwithstanding the special provision as to crossings in St. 1870, p. 297, c. 386, these grades can now be separated under a general law, the proceedings will need to be in a different form and before another tribunal. Rev. Laws, c. 111, § 149.

As the order in regard to this crossing was wholly unwarranted, a writ of certiorari must be issued in accordance with the prayer of the petitioners.

The petition in the other case relates to the order for the erection of a bridge and the construction of a street to cross over the main line of the railroad at its intersection with Lowell street. The orders upon the two petitions were made at the same time, and as a part of a single scheme which called for the erection of a steel bridge over each of the lines of the railroad, at a height to give 16 feet in the clear between the tracks and the bridge above. The distance between the adjacent abutments of the two bridges, measuring on Lowell street, was to be about 125 feet. The street was to be constructed 40 feet wide and the bridges were to be of the same width. The street was to be graded for a considerable distance on each side of the tracks; and the grades of other streets near by, running at right angles to Lowell street, were also to be raised to make convenient connections with that street.

The petition and order in this case were under Rev. Laws, c. 111 § 134. This section authorizes the county commissioners to make an alteration in a crossing, the approaches thereto, the location of the railroad or way, or in a bridge at the crossing, if the change does not involve the abolition of a crossing at grade. When action is taken under this section the county commissioners must prescribe the manner of making the changes, and the limits within which they are to be made. If necessary, land may be taken for the purpose, and the...