City of Worcester v. Worcester Consol. St. Ry. Co.
| Decision Date | 15 July 1902 |
| Citation | 182 Mass. 49,64 N.E. 581 |
| Parties | CITY OF WORCESTER v. WORCESTER CONSOL. ST. RY. CO. (three cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Arthur P. Rugg and Ernest I. Morgan, for plaintiff.
Warren & Garfield, for defendant.
One of the cases is an action of contract, brought to recover expenses incurred by the city in renewing or repairing the pavement or other surface of some of its streets in which are tracks of the defendant. Two of the cases are petitions for writs of mandamus to compel the railway company to maintain and keep in proper repair certain portions of the petitioner's streets. The two other cases are bills in equity asking for similar relief. The action of contract comes here by the plaintiff's appeal, the defendant's demurrer having been sustained and judgment ordered for the defendant in the superior court. The two equity cases are here upon the plaintiff's appeals from decrees of the superior court sustaining demurrers and dismissing the bills. The other two cases were reserved by the chief justice for determination of the full court, with an agreement of the parties that no question of the form of procedure or of the proper parties should be insisted upon. The question in all the cases is whether the railway company, since the passage of St. 1898, c. 578, has been under the legal obligation to maintain and keep in repair the paving or surface material of certain portions of certain of the streets of Worcester in which some of the company's tracks are located.
Towns and cities do not necessarily own the soil of the streets and are not the proprietors of the right to use them for travel. Unless otherwise provided, each municipality, at its own expense, must keep the highways, townways, causeways, and bridges within it in repair. Under the power to make by-laws and ordinances, a town or city may, to some extent, regulate the use of streets by travelers. The first street railway was authorized in the year 1853. From that time to the passage of St. 1898, c. 578, every company was obliged, by the terms of its charter or by general law, to keep in repair some portion of the street. See St. 1853, c. 353, § 3, and the other early charters; St. 1864, c. 229, § 18; St. 1871, c. 381, § 21; St 1881, c. 121, § 1; Pub. St. c. 113, § 32. From the year 1864 boards of aldermen and selectmen, in granting locations, have been authorized to impose 'such restrictions as they deem the interests of the public may require.' St. 1864, c. 229, § 14; St. 1871, c. 381,§ 14; St. 1874, c. 29, § 6; Pub. St. c. 113, §§ 7, 21. Before the year 1898 very many street railways had been built, not only in the more densely populated places, but to connect different places by lines running long distances. Aside from the ordinary property and franchise taxes, and the specific obligation imposed by their charters or the general laws to keep in repair some small portion of those streets and bridges occupied by their track, the only method of compelling the companies to contribute to the burden imposed upon the municipalities with respect to roads and bridges was the indirect one of imposing obligations upon the company in the guise of restrictions upon grants of locations. In many quarters there was also a feeling that the companies should pay the public for the right to make money by the use of the streets. The result was that many different obligations were imposed on the companies as restrictions in grants of locations, and the grants accepted and acted upon by the companies. The situation was called to the attention of the legislature of 1897 in the annual message of the governor, with a recommendation that authority should be granted to require 'that a direct return shall be made to the treasury of the municipality, either by a fixed rental or tax, by a toll upon the cars using...
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