Cheney v. Barker

• Decision Date: 04 April 1908
• Parties: CHENEY et al. SAME v. BARKER et al. BOSTON CONSOL. GAS CO. SAME v. CHENEY et al. SAME v. MAGGI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

198 Mass. 356

84 N.E. 492

CHENEY et al. SAME v. BARKER et al. BOSTON CONSOL. GAS CO. SAME v. CHENEY et al. SAME v. MAGGI.

Supreme Judicial Court of Massachusetts, Suffolk.

April 4, 1908

COUNSEL

Samuel R. Cutler and Harry W. James, for city of Chelsea and its board of aldermen and superintendent of streets.

Dana Malone, Atty. Gen., and Frederick B. Greenhalge, Asst. Atty Gen., for respondents.

Gaston Snow & Saltonstall, for Boston Consolidated Gas Co.

OPINION

SHELDON J.

The first of these cases is a petition for a writ of certiorari to quash an order of the board of gas and electric light commissioners granting to the Boston Consolidated Gas Company, hereinafter called the 'Boston Company,' or simply the 'company,' locations for a pipe line in certain streets, lanes and highways in the city of Chelsea. It has been reserved for the consideration of this court upon the petition and answer and return of the respondents, and certain agreed facts. The Boston Company is the lawful successor in title to the Massachusetts Pipe Line Gas Company, under St. 1903, p. 390, c. 417, and has all the rights given to that company by St. 1896, p. 564, c. 537, if all the provisions of those statutes are constitutional which the petitioners deny.

The Massachusetts Pipe Line Gas Company was incorporated by St. 1896, p. 566, c. 537; and section 5 of that act, as amended by St. 1903, p. 396, c. 417, § 9, provides as follows: 'If the company shall desire for its pipe lines the right to construct, maintain and operate the same in the streets, lanes and highways of any city or town, it shall petition the aldermen or selectmen therefor, stating the termini of such pipe line in such city or town with as much particularity and certainty as practicable, and stating the streets, highways and lanes in which the company desires to locate such pipe line; and the aldermen or selectmen may grant that location or such other location in such streets, lanes and highways as they shall deem proper. In the event that said aldermen or selectmen shall for a period of thirty days refuse or neglect to grant a location, or if the company is dissatisfied with the location granted, it may within sixty days thereafter appeal to the board of gas and electric light commissioners, who, after such hearing and notice as they shall deem proper, may grant to the company reasonable locations between said termini for such pipe line in the streets, lanes and highways of said city or town. Upon the granting of such locations by said aldermen, selectmen or board, the company may lay, construct, maintain and operate such pipe line in the location granted. Similar rights as to additional pipe lines in the same city or town shall be obtained only by permission of the board. The company may, upon obtaining such locations, and subject to such regulations and restrictions in respect to the manner and time of conducting the work as said aldermen or selectmen shall prescribe, dig up and open the ground in any of the streets, lanes and highways of said city or town so far as is necessary to accomplish the object of the corporation; but such grant shall not affect the right or remedy to recover damages for an injury caused to persons or property by the doings of the company. It shall put all such streets, lanes and highways which are opened by it in as good repair as they were when opened, and to the satisfaction of the local authorities of the city or town in which such streets, lanes or highways are located, and upon failure so to do within a reasonable time shall be deemed guilty of a nuisance. In constructing, maintaining, repairing or extending its distributing system in any city or town the company shall be subject to all the restrictions, regulations and liabilities set forth in section seventy-five of chapter one hundred and six of the Public Statutes, except as in this act provided; and in the construction, maintaining, repairing and extending of its pipe lines and distributing systems it shall in all cases be subject to the restrictions, regulations and liabilities set forth in sections seventy- six and seventy-seven of said chapter one hundred and six. If in making such excavations any water or gas pipes, sewers, drains, conduits or other subterranean works are disturbed or interfered with, the same shall, at the expense of the company, be restored to as good condition as they were in before such excavation. All locations granted under this section shall be subject to revocation by said aldermen or selectmen respectively, subject to the approval of said board.'

In June, 1907, the Boston Company presented to the board of aldermen of the city of Chelsea a petition for the grant of a location for a proposed pipe line to run through certain named public ways of that city, and also at one point over certain private property, from a point near the boundary line of the city of Everett to a point near the boundary line of the city of Boston. This pipe line was for the purpose of connecting the works of the gas company in Everett through the city of Chelsea with those of the East Boston Gas Company. The board of aldermen neglected for more than thirty days to grant this or any other location; and thereupon the company appealed to the board of gas and electric light commissioners, which after a hearing made the order in question, granting the same locations as described in the original petition.

The petitioners in this case contend that the statute already quoted, St. 1896, p. 566, c. 537, § 5, as amended by St. 1903, p. 396, c. 417, § 9, is unconstitutional and void, so far at least as it provides for the laying of pipe lines in public ways. Their claim is that the effect of this is to impose an additional servitude upon the lands over which the way is laid out, and that, as there is no provision for compensation to the owners of the fee in such lands, the provisions which impose such an additional servitude are void.

The first question accordingly to be considered is whether the laying of a pipe line for the transmission of gas through and under a public street does impose such an additional servitude, for which the owner of the land must have compensation secured to him. A pipe line is defined in the act as being 'a line of pipes, mains or conduits, with the man holes and other apparatus necessary for the operation thereof, connecting a distributing system, plant for the manufacture of gas, or other pipe line, with any distributing system, plant, pipe line, town or city.' St. 1896, p. 565, c. 537, § 2. The general rule established in this Commonwealth is stated by Holmes, J., in Lincoln v. Commonwealth, 164 Mass. 1, 10, 41 N.E. 112: 'When land is taken for a highway, all uses of the land directly or incidentally conducive to the enjoyment of the public easement which the necessity and convenience of the public may require, either then or in the future, are paid for, wherever the highway may be. Boston v. Richardson, 13 Allen, 146, 159, 160. It sometimes is said that the whole beneficial use of the land is taken. Com. v. Lowell Gaslight Co., 12 Allen, 75, 77. As practically the land owners get the full value of their land in such cases, if there is any injustice it is not they who suffer it. Brainard v. Clapp, 10 Cush. 6, 57 Am. Dec. 74; Cassidy v. Old Colony R. R., 141 Mass. 174, 177, 5 N.E. 142; Newton v. Perry, 163 Mass. 319, 39 N.E. 1032. * * * Also it is held that the public right extends to authorizing companies to make use of the streets. Pierce v. Drew, 136 Mass. 75, 81, 49 Am. Rep. 7; Com. v. Lowell Gaslight Co., 12 Allen, 75.' And see Hyde v. Boston & Worcester Street Ry., 194 Mass. 80, 80 N.E. 517. The same doctrine has been applied to such underground uses of the public streets as the laying of common sewers, main drains, water pipes, conduits, subways, and gas mains, either by private companies or by officers acting for the public. Sears v. Crocker, 184 Mass. 586, 69 N.E. 327, 100 Am. St. Rep. 577; Chelsea Dye House Co. v. Com., 164 Mass. 350, 353, 41 N.E. 649; Com. v. Lowell Gaslight Co., 12 Allen, 75. In Pierce v. Drew. 136 Mass. 75, 81, 49 Am. Rep. 7, Devens, J., said: 'It has never been doubted that by authority of the Legislature highways might be used for gas or water pipes intended for the convenience of the citizens, although the gas or water was conducted thereunder by companies formed for the purpose.' And in Com. v. Morrison (Mass.) 197 Mass. 199, 83 N.E. 415, Rugg, J., said, with a very full citation of the cases: 'The public secure by the location of a highway an easement of passage, with all the powers and privileges which are necessarily implied as incidental to its exercise. The easement is coextensive with the limits of the highway. The fee of the land remains in the landowner, who may make any use of it not inconsistent with the paramount right of the public. * * * The easement acquired by the public includes every reasonable means of transportation for persons and commodities, and of transmission of intelligence, which the advance of civilization may render suitable for a highway. Under this description, gas and water pipes, sewers, telephone, telegraph, electric light and power poles, wires and conduits, electric and horse railways, the Boston subway and private railroads have been permitted within the limits of highways.' We cannot doubt the power of the Legislature to authorize the laying of lines of gas pipes under the surface of the public streets without providing any compensation for the owners of the fee in the soil of those streets.

But the petitioners claim that the pipe line under ...