Boston & L.R. Corporation v. Inhabitants of Town of Winchester

• Decision Date: 06 May 1892
• Citation: 30 N.E. 1139,156 Mass. 217
• Parties: BOSTON & L.R. CORP. v. TOWN OF WINCHESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 217

30 N.E. 1139

BOSTON & L.R. CORP. v. TOWN OF WINCHESTER.

Supreme Judicial Court of Massachusetts, Middlesex.

May 6, 1892

COUNSEL

Strout &amp Coolidge, for Boston & Lowell R. Corp.

Samuel J. Elder and Wm. Cushing Wait, for respondent.

OPINION

BARKER, J.

The jury were impaneled to revise the award of a special commission apportioning the charges of the alteration of the crossing of the Boston & Lowell Railroad and Swanton street in Winchester, under the provisions of Pub.St. c. 112, §§ 129-134, as modified by St.1882, c. 135, and St.1885, c. 194. No appeal was claimed under St.1882, c. 135, but the town applied to the superior court for a jury to revise and determine the matters of fact found in the second item of the award, which required the town to pay to the railroad corporation the sum of $3,000 and the land damages, and to bear the future charges of keeping the approaches of the bridge in repair. Swanton street was a town way laid out after the construction of the railroad, which it crossed by an overhead bridge of wood, supported upon abutments and posts within the location of the railroad. The bridge needed rebuilding, and the railroad corporation desired such alterations as would free its location from the abutments and supports, and allow the use of its whole territory for tracks. The wooden bridge was replaced with one of iron longer, higher, and wider than the old, and supported upon abutments placed outside of the railroad location. The approaches were also widened and lengthened. The whole expense of these alterations, with interest to the time of the trial, was about $25,000. The railroad corporation had made the alterations and paid the land damages, and a form of verdict was agreed upon by which the only question submitted to the jury was as to the amount to be paid by the town to the railroad corporation. The proceedings for the alterations were commenced by a petition of the directors of the railroad corporation. The questions raised by the exceptions are whether the facts that the town appeared at the hearing before the county commissioners and opposed any alteration of the bridge, and submitted a plan by which it was claimed that all the objects of the railroad corporation could be obtained without any alteration of the bridge, were admissible in evidence at the trial by the jury; whether the burden of proof at the trial was upon the railroad corporation; and whether the presiding justice erred in his instructions to the jury as to the rules which should govern them in making the apportionment. Without examining in detail the previous statutes regulating this general subject, it is sufficient to say that before the adoption of the statute of 1872, c. 262, there was no method of apportioning the charges of such alterations between railroad corporations and the public agencies charged with the construction and repair of ordinary roads. As stated by Chief Justice GRAY in the opinion of this court in the case of Boston & Albany Railroad Co. v. County Com'rs, 116 Mass. 73, 79, the manifest objects of the changes adopted "were that, as an inconvenient crossing might injuriously affect the public travel on the railroad as well as that upon the highway, the officers of the railroad corporation should have the same right as the municipal authorities of the city or town in which the crossing was situated to apply directly to the county commissioners for a remedy; and that, as it might be inequitable to charge upon the railroad...