City of Cambridge v. Boston Elevated Ry. Co.

• Decision Date: 19 May 1922
• Citation: City of Cambridge v. Boston Elevated Ry. Co., 241 Mass. 374, 135 N.E. 313 (Mass. 1922)
• Parties: CITY OF CAMBRIDGE v. BOSTON ELEVATED RY. CO. BOSTON ELEVATED RY. CO. v. DUNPHY, Superintendent of Streets.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 374

135 N.E. 313

CITY OF CAMBRIDGE

v.BOSTON ELEVATED RY. CO.

BOSTON ELEVATED RY. CO.

v.DUNPHY, Superintendent of Streets.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1922.

Report from Supreme Judicial Court, Suffolk County.

Suit by the City of Cambridge against the Boston Elevated Railway Company, and petition by the Boston Elevated Railway Company for a writ of mandamus against Edward J. Dunphy, Superintendent of Streets.Reported by a single justice on the pleadings and agreed statement of facts.Bill dismissed, and petition for mandamus denied.

The department of public utilities granted to the railway company locations for tracks, poles, etc., on certain streets in the city of Cambridge, including Third street, in connection with the establishment of an inclosed transfer area, station and shelters, with approaches, etc.The city sought to enjoin the use of Third street, and the railway company sought to compel the issuance of permits to open, occupy, obstruct, incumber, and use such parts of Third street and certain other streets as were reasonably necessary to lay tracks and set poles upon the locations granted by the order of the department of public utilities.The department of public utilities purported to act under authority of Sp. St. 1917, c. 373, and the city denied its authority under that act or any other act to grant such locations.

Peter J. Nelligan, City Sol., of Cambridge, for city of Cambridge and dunphy.

H. Ware Barnum, of Boston (Charles W. Mulcahy, of Boston, of counsel), for board of trustees of Boston Elevated Ry. Co.

RUGG, C. J.

The city of Cambridge brings a suit in equity to restrain the Boston Elevated Railway Company from constructing its tracks in Third street, a public highway within that city, and tracks connecting therewith.The Boston Elevated Railway Company brings a petition for a writ of mandamus to compel the superintendent of streets of the city of Cambridge to issue permits or licenses to the railway company to open, use, occupy and incumber parts of Third street and certain other streets for the purpose of laying tracks and setting poles in accordance with a location granted to it by the department of public utilities.Each case is reserved for our determination upon the pleadings and an agreed statement of facts.

The Boston Elevated Railway Company, hereafter called the company, is the chief, if not the only, common carrier of passengers by means of street cars in Boston, Cambridge and numerous other nearby cities and towns, operating tracks and cars in the streets of all these municipalities.Its operation is of so much public concern that it has been taken over by a board of public trustees under Sp. St. 1918, c. 159.Boston v. Treasurer & Receiver General, 237 Mass. 403, 414, 130 N. E. 390.An average of approximately 900,000 passengers are transported daily on its lines.It operates as lessee the subways in Boston and Cambridge.It owns and operates an elevated railway structure in Cambridge, which connects with the Boston subways on the Boston end, and on the other, near Lechmere square in Cambridge, with surface tracks diverging over divers routes in public ways in Cambridge and Somerville.It also operates an elevated railway structure in Boston and surface cars in other cities and towns.For some years there have existed during morning and evening rush hours undesirable congestion and crowding of passengers at the Park Street subway station in Boston and on some surface lines, although practically as many cars were operated as possible under existing arrangements and methods.By cars coupled in trains of three or four cars each nearly three times as many cars can be operated over the same tracks in a given time as by single cars.

‘An act relative to the property, service and capitalization of the Boston Elevated Railway Company’ is the title of Sp. St. 1917, c. 373.Part 2 of that act is designed to enable the railway company to provide additional cars and to improve its service, and part 3 to authorize it to establish inclosed areas, stations or shelters for the convenient transfer of passengers.It is provided in section 6 of part 3 that--

‘The company may, to the extent and in the manner in which the public service commission, after notice and a public hearing, may approve, establish in and upon public and private ways and lands in connection with any lines of railway, or elevated railway station or terminal now or hereafter owned, leased or operated by it, suitable inclosed areas, stations or shelters with approaches, tracks, poles, wires and other structures and connections with existing stations, terminals, tracks and wires, all hereinafter called appurtenances, for the convenient transfer of passengers between surface cars and elevated railway stations or trains, or between surface cars; but the work of construction thereof shall not be begun before plans have been approved by said commission showing the general form and method of construction, the extent to which any public or private way or land is to be occupied, and the extent to which public ways or places are to be laid out, widened, altered or discontinued.’

The board of public trustees operating the company determined that its transportation service would be substantially improved by the establishment of an inclosed area or station near Lechmere square in Cambridge for the transfer of passengers between trains operated through the subways and over elevated structures and surface cars operated on streets.Accordingly a petition to that end was presented to the department of public utilities, the legal successor of the public service commission.After due proceedings, the department of public utilities sanctioned the establishment...