City of Cambridge v. R.R. Comm'rs

• Decision Date: 13 January 1891
• Citation: 26 N.E. 241,153 Mass. 161
• Parties: CITY OF CAMBRIDGE v. RAILROAD COMMISSIONERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

153 Mass. 161

26 N.E. 241

CITY OF CAMBRIDGE

v.RAILROAD COMMISSIONERS.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 13, 1891.

Report from supreme judicial court, Suffolk county.

Geo. Putnam and C.J. McIntire, for petitioners.

Samuel Hoar, for Boston & Albany Railroad.

J.B. Richardson and A.J. Bailey, for city of Boston.

Railroad Commissioners, pro se.

MORTON, J.

These are petitions for certiorari and mandamus against the board of railroad commissioners, and are both based on the same facts. Two petitions were brought, owing to the uncertainty as to which was the proper remedy. The cases were heard together before a single justice, who found and ruled in favor of the petitioner, and reported the cases to this court for its decision as to whether certiorari or mandamus, or both, or neither, should issue. The admissibility of certain evidence is also involved. At the hearing before the single justice, the city of Boston, and the Boston & Albany Railroad Company, were respectively allowed to intervene, and they filed answers, and were heard. They also took part in the argument to the full court. The board of railroad commissioners filed a brief, but did not argue orally. It appears that, by the statute of 1882, c. 155, the cities of Boston and Cambridge were authorized to build a bridge over Charles river, within certain lines between those two cities, and to construct an avenue from a point on Beacon street, in Boston, to a point in Cambridge, west of the westerly line of the Boston & Albany Railroad. The plans of the bridge, and the manner of its construction, were to be subject to the approval of the harbor and land commissioners. Nothing seems to have been done, under this act, by either city, for several years, except that the city engineer of Boston prepared plans in December, 1884, which contemplated the extension of West Chester park, in Boston, and of Front street, in Cambridge, with the erection of a bridge between, as the bridge and avenue which the two cities were authorized by it to build and construct. This plan was approved by the city councils of the two cities. In 1887, a mandatory act was passed which constituted the mayors of Boston and Cambridge, with one other person to be appointed by them, a board of commissioners, and required them “to construct a bridge and avenue across Charles river, between West Chester park, in Boston, and Front street, extended in Cambridge substantially in accordance with plans prepared by the city engineer of Boston, dated December, 1884, and approved by the city councils of said cities.” This act was made subject to the provisions of the statute of 1882, c. 155, except so far as they were modified by it. Afterwards, in July, 1888, the city of Cambridge widened, extended, and laid out Front street from its then terminus to the south-easterly line of land of the Boston & Albany Railroad, crossing said railroad at grade. In the following year, viz., July 23, 1889, the city of Cambridge further laid out and extended Front street from the terminus under the lay-out of 1888 to the harbor commissioners' line in Charles river. In both these lay-outs, a grade was fixed. In the mean time, on May 21, 1889, the street commissioners of Boston laid out and extended West Chester park to the harbor commissioners' line on the south side of Charles river, at the “Harvard Bridge,” so called, and established its grade. By October, 1889, Front street had been filled by the city of Cambridge to grade to the bridge, and by January, 1890, the bridge had been substantially completed with the West Chester park extension to it on the Boston side. January 21, 1890, Cambridge notified Boston that Front street was the avenue to the bridge required by the statute of 1882, c. 155, § 1, and, in the following March, Boston accepted this as the avenue called for by that act, reserving the question of the railroad crossing for the consideration of the railroad commissioners. This was the first intimation from the city of Boston that it claimed a voice in fixing the grade of the avenue in Cambridge or in the matter of the crossing of the Boston & Albany Railroad. It is evident from this recital that the bridge and the West Chester park extension to it in Boston, and the lay-out and extension of Front street to it in Cambridge, were designed and constructed by the two cities and the commissioners as the bridge and avenue called for by the acts of 1882 and 1887. In May, 1890, the city of Cambridge petitioned the railroad commissioners to prescribe under the statute of 1882, c. 155, § 6, the details of the crossing at the Boston & Albany Railroad. At the hearing upon this petition, the city of Boston objected that the crossing was not legally located, and the grade at the point of crossing had not been legally established, and that the city of Boston had not concurredin said crossing at grade. The Boston & Albany Railroad also made similar objections. The railroad commissioners decided, as appears from their printed opinion, which forms one of the exhibits in the case, that the city of Cambridge had no authority to lay out said Front street at grade over the railroad, and that the manner of crossing was one of the details over which they had jurisdiction, and ordered “the avenue to be carried over the railroad, the bridge to be constructed of iron, and to be at a height of not less than sixteen feet above the track of the railroad.” Thereupon these petitions were brought by the city of Cambridge, and substantially the same grounds have been taken by the city of Boston and the Boston & Albany Railroad, at the argument before the full court, as were taken by them before the railroad commissioners, and the brief of the commissioners is in support of conclusions which they reached upon the hearing before them.

The first question is whether the acts of 1882 and 1887 required concurrent action on the part of Boston and Cambridge in laying out so much of the avenue as was on each side of Charles river and within their respective limits. And we think it is clear that nothing in either act did require it. The statute of 1882, c. 155, § 1, after authorizing the two cities to construct a bridge and avenue across Charles river, and between certain termini in Boston and Cambridge, provides that “the location of said bridge and avenue shall be determined by the city councils of said cities, acting separately.” Then follow certain provisions regarding the bridge. It is to be built, so far as it affects the harbor, subject to the approval of the harbor and land commissioners. It is to be constructed of such materials as the two cities may agree upon; but the piers are to be of iron or stone of such size, shape, construction, and distance from one another, as the board of harbor and land commissioners, after hearing, shall determine and certify to each city. Neither city is to “separately enter upon the construction of said bridge, but they shall jointly proceed to construct the same, in accordance with plans to be submitted to and approved by the councils of said cities concurrently, and by the said board of harbor and land commissioners.” The expense of constructing so much of said bridge as lies between the harbor commissioners' lines is to be borne in such proportions as the two cities may agree. The cost of keeping the bridge in repair, of maintaining the draw and draw-tender, and all damages recovered by reason of a defect or want of repair in the bridge between the harbor lines, or in the draw, are to be paid equally by the two cities. Concurrent and agreeing action is thus expressly provided for, on the part of the two cities, in relation to matters affecting the bridge. No such action is however provided for regarding the location and construction of so much of the avenue as lies within the respective limits of the two cities, and is not included in the bridge. In addition to the provision previously alluded to, that the city councils of the two cities are to act separately upon the matter of location, the act provides that the cities shall act separately concerning other matters relating to those portions of the avenue on each side of the river, and within their respective jurisdictions. Section 3 provides that each city may, within its own limits, purchase and take lands for said bridge and avenue; that all the proceedings relating to such taking shall be the same as in the case of land taken for highways within said cities respectively, with like remedies to all parties interested; and that betterments may be assessed in each city, under the betterment acts in force in each city respectively. Section 4 provides that each of said cities shall bear the expense, including land damage, of constructing such part of said bridge and avenue as lies upon its own side of the Charles river. Each city is also left to bear the expense of maintaining and repairing that portion of the avenue that is within its own limits. There is in all this no intimation that either city shall have anything to do with the other in laying out, or locating, or constructing that portion of the avenue that lies within the other's limits. The statute of 1887, which relates solely to the bridge, also provides for concurrent action on the part of the two cities concerning that, but says nothing about the rest of the avenue. In view, therefore, of the different modes which are...