Boston & P.R. Corp. v. Doherty

• Decision Date: 02 September 1891
• Citation: 28 N.E. 277,154 Mass. 314
• Parties: BOSTON & P.R. CORP. et al. v. DOHERTY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 314

28 N.E. 277

BOSTON & P.R. CORP. et al. v. DOHERTY.

Supreme Judicial Court of Massachusetts, Suffolk.

September 2, 1891

The Boston & Providence Railroad Corporation, in 1849, constructed its railroad through the land of one Mary White, and thereafter, in December, 1849, the county commissioners of Suffolk county, wherein the land was situate, assessed her damages for the land taken, and ordered the company to make and maintain a cart and carriage way across its road for the accommodation of said White, and her heirs and assigns, in going to and from a portion of her land cut off by the railroad. The way was built and maintained by the company until it leased its road to the Old Colony Railway Company. The defendant and others claimed to have acquired title to portions of the land before the lessee took possession of the road, and to have the right to cross the road by the driveway, and to have the same maintained for that purpose. By reason of the increase of its traffic the lessee desired to have the old crossing abandoned, and for that purpose offered to establish for the claimants a new crossing, and in consideration of this offer they all agreed orally to release their claim to an easement in the old crossing; whereupon the company purchased lands for and opened the new crossing. All of the claimants except defendant then released all right to said easement. The lessee then closed the old crossing, and afterwards defendant brought suit for damages by reason thereof. This suit was brought to restrain defendant from asserting any right to the old crossing.

COUNSEL

J.H Benton, Jr., for plaintiffs.

C.W Turner, for defendant.

OPINION

KNOWLTON J.

Under the order of the county commissioners the defendant had a right of way across the plaintiffs' tracks. Since the enactment of the statute which is now section 113, c. 112, Pub.St., the county commissioners have had authority, at the time of estimating damages to land-owners for the appropriation of their lands by a railroad company, to "order the corporation to construct and maintain such embankments, culverts, walls, fences, or other structures as they judge reasonable for the security and benefit of such owner." Without a right to cross the railroad, a land-owner might be entirely cut off from access to a valuable portion of his estate; and there can be no doubt that, under this section, a structure on which the owner may conveniently cross under the track or over it, or on the same grade with it, may be ordered, if the commissioners judge it reasonable for his security and benefit. This has been the practical construction of the statute all over the commonwealth for nearly 40 years, and it has been assumed by the court to be correct. White v. Railroad Corp., 6 Cush. 420; Presbrey v. Railroad Co., 103 Mass. 1; Gay v. Railroad Co., 141 Mass. 408, 6 N.E. 236; Keith v. Railroad Corp., 1 Gray, 614.

The important question in the case is whether the defendant's easement was extinguished by his license to the plaintiffs to close up the way and by the execution of this license. By the evidence which was introduced subject to the defendant's exception, it appeared, among other things, that, on account of the great increase of the plaintiffs' business, the condition of affairs had become such "that it was not safe for the operation of the road to continue the way claimed by the defendant and others across the track." We think this...