Browne v. Turner

Decision Date03 July 1899
Citation54 N.E. 510,174 Mass. 150
PartiesBROWNE et al. v. TURNER et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

N Matthews, Jr., H.L. Harding, and W.G. Thompson, for petitioners.

A.E Pillsbury, for Boston El. Ry. Co. and others.

Solomon Lincoln, for Boston transit commission. T.M. Babson, for A.T Turner.

HAMMOND J.

This is a petition under St.1898, c. 490. At the threshold of the case, it is urged by the respondents that the constitutional questions which the petitioners seek to raise are not open to them upon such a petition. In view of the conclusion to which we have come in relation to the statutory question involved, we have had no occasion to consider the constitutional questions, nor, of course, whether they can be raised in this way. The statutory question is simply whether the tunnel which the transit commission has voted, and intends to build, is such as St.1897, c. 500, calls for. As the first step in this inquiry, it is necessary to ascertain what kind of a tunnel the commission has voted and intends to build. On October 18, 1898, the commission passed the following vote: "Whereas, the corporation counsel has expressed the opinion that, under section 17 of chapter 500 of the Acts of the year 1897, this commission is authorized to build a tunnel or tunnels to East Boston, either from the surface at a point on or near Hanover St., or from any subway or subways constructed under the authority of chapter 548 of the Acts of the year 1894: Voted, that the construction of a tunnel or tunnels, beginning on or near Hanover St., in the city of Boston, or beginning at such other point or points as may be proper for a suitable connection with the subway or subways authorized by chapter 548 of the Acts of the year 1894, thence running to a point at or near Maverick Sq., in that part of Boston called 'East Boston,' making there a suitable connection with the surface tracks, be proceeded with, and that, as a preliminary, the chief engineer be instructed to have surveys, estimates, and plans made for such tunnel or tunnels." On November 29, 1898, it "voted that route 3, 4 be adopted as the route for the East Boston tunnel, as far as the vicinity of Atlantic avenue," in the city proper; and on February 16 and February 23, 1899, it passed the following votes, respectively: "Whereas, the statutes creating this commission, and providing for the construction of the subway and a tunnel to East Boston, contemplate a system of public travel to be conducted by street-railway cars: Voted, that, in the judgment of this commission, a connection by surface street-railway tracks between the proposed tunnel to East Boston and the subway is a suitable connection, within the meaning of section 17 of chapter 500 of the Acts of 1897. Voted, that the construction of the tunnel west of the point indicated in the vote of Tuesday, November 29, 1898, shall be such that the tracks shall rise to the surface of the ground by an inclined way." In addition to these votes, the court has found the following: "The tunnel about to be constructed, under the votes set forth in Exhibit 3, will run from Maverick Sq., in East Boston, to the junction of Atlantic avenue, in the city proper, along the route marked '3, 4,' as shown in Exhibit 2. The commissioners have come to no definite decision as to the precise direction of the tunnel beyond the last-named point, but they are considering the feasibility of bringing the tunnel to the surface on or near Atlantic avenue or Commercial street, by means of an incline, or of coming to the surface near North square, or of turning in a southerly direction, on Atlantic avenue, and coming to the surface at some point south of the junction of that avenue with Eastern avenue, or of going towards the subway in some other direction." It thus appears that the easterly terminus is to be at Maverick square, where it will come to the surface by an incline, making there a suitable connection with surface tracks, and that the westerly terminus will be at least as far west as the junction of Atlantic avenue and Eastern avenue in the city proper. Whether it will come to the surface at that point, or at some distance from there, is not definitely decided; but it is certain that it will come to the surface no nearer the subway than North square, which, as appears by the plan, is at least 1,500 feet from the nearest point of the subway, and much further than that from any car entrance to the subway, and that the only connection between the tunnel and the subway is by means of surface tracks.

Is this such a tunnel as the statute calls for? If the statute requires that the tunnel shall make an actual physical connection with the subway, or, at least, a direct and immediate connection with the subway, so that passengers can pass directly from one to the other, then the question must be answered in the negative; otherwise, it may be answered in the affirmative. The decision of this question depends upon the interpretation to be given to the following words in section 17, c. 500, St.1897: "Whenever said corporation [[the Boston Elevated Railway Company] is authorized to begin the construction of its railroad over the route first applied for, as provided in section thirteen of this act, the Boston transit commission shall construct a tunnel or tunnels, of sufficient size for two railway tracks, with approaches, entrances, sidings, stations and connections therefor, and for the running of railway cars therein, from a point on or near Hanover street in the city of Boston, or such other point or points as said board may deem proper for a suitable connection with the subway or subways provided for in section twenty-five of said chapter five hundred and forty-eight, to a point at or near Maverick square in that part of Boston called East Boston, where a suitable connection with surface tracks may be made."

Simply and briefly stated, the question is, does this language require that the westerly end of the tunnel shall touch the subway, or, at least, come in direct and immediate connection with it, as above stated?

Inasmuch as the words last above quoted constitute only a part of one section in a statute of several sections, which statute is only one of several upon the same general subject of rapid transit in Boston and its immediate vicinity, it is proper to review to some extent the prior legislation on this matter; and, further, to see what was the actual condition of things, physical or otherwise, at the time of the passage of the act, so far as material to this inquiry.

The first act authorizing the construction of a subway was St.1893, c. 478. Section 1 provided that the mayor of Boston should appoint a board of three subway commissioners. By section 2, this board was authorized to lay out and construct, for street-railway purposes, a subway, with approaches, stations, exits, and entrances, from a point or points at or near the junction of Tremont and Pleasant streets to Scollay square, and to other streets near Scollay square, to a point or points where, in the judgment of the board, a suitable and advantageous exit, to connect with surface tracks, might be obtained. By section 3, authority was given to the board to take lands, either below or upon the surface, as might be requisite, for the widening of the subway, and for suitable approaches thereto, and extension thereof, to connect with surface tracks, and for suitable stations, exits, and entrances. By section 7, power was given to the board to compel the cars of any lines of street railway running in and through said city to run in and through the subway. It is manifest that this statute contemplated a physical union between the entrances to, and the exits from, the subway and the surface tracks, and the commission was authorized to take such "lands, either below or upon the surface," as might be requisite for widening the subway, and for suitable approaches thereto and extension thereof, to connect with those tracks. In other words, they were authorized to build the subway, and to extend the approach, so as to make connection with the surface tracks.

The next statute is St.1894, c. 548. The title is "An act to incorporate the Boston Elevated Railway Company and to promote rapid transit in the city of Boston and vicinity." The first 22 sections provide for the incorporation of the Boston Elevated Railway Company, and authorize it to build an elevated railroad over certain routes therein specified, and to lease and purchase certain street or elevated railway lines. The remaining sections provide for the appointment of a Boston transit commission consisting of five persons, and for the construction of subways and a tunnel. Section 25 authorizes the commission "to construct in the city of Boston a subway or subways of sufficient size for four railroad tracks with approaches, entrances, sidings, stations and connections therefor, and for the running of railway cars thereon through and under Tremont street and the adjoining mall of the Boston Common, and through public and private lands adjoining on said street, from a point or points within one hundred feet of the junction of Tremont street and Shawmut avenue to, through and under Scollay square," and "to a point or points on Washington street or between Scollay square and Causeway street." By section 26, the commission was authorized to "construct a tunnel or tunnels of sufficient size for two railway tracks, with approaches, entrances, sidings, stations and connections therefor, and for the running of railway cars therein, from a point on or near Scollay square in the city of Boston where a suitable connection may be made with the subway or subways provided for by this act, to a point on or near...

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4 cases
  • Massachusetts Institute of Technology v. Boston Society of Natural History
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 8, 1914
    ...but as an instrument creating rights in others; and it is competent to show the circumstances as they then existed. Browne v. Turner, 174 Mass. 150, 159, 54 N.E. 510; Old South Association v. Boston, 212 Mass. 299, 99 N.E. 235; Cook v. Rea, 105 N.E. 618 (May, 1914). See also Beals v. Case, ......
  • Massachusetts Institute of Technology v. Boston Society Of Natural History
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 8, 1914
    ...but as an instrument creating rights in others; and it is competent to show the circumstances as they then existed. Browne v. Turner, 174 Mass. 150, 159, 54 N.E. 510; Old South Association v. Boston, 212 Mass. 299, 99 N.E. 235; Cook v. Rea, 105 N.E. 618 (May, 1914). See also Beals v. Case, ......
  • City of Boston v. Talbot
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 18, 1910
    ... ... proper sources of information from which to discover the ... meaning of the language of a statute passed by that ... body.' See, also, Browne v. Turner, 174 Mass ... 159, 54 N.E. 510. While facts that appear in connection with ... the proceedings in the enactment of statutes may ... ...
  • Directors of Boston & M.R.R. v. City of Woburn
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 28, 1929
    ...of the department of public works, the language of the statute was intended to apply to the situation here. See Browne v. Turner, 174 Mass. 150, 159, 54 N. E. 510. We do not think it follows, as the Commonwealth contends, that from this construction the Commonwealth can be made a party to e......

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