Conklin v. Old Colony R. Co.

• Decision Date: 26 June 1891
• Parties: CONKLIN v. OLD COLONY R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 155

28 N.E. 143

CONKLIN v. OLD COLONY R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 26, 1891

COUNSEL

Bartlett, Gage & Anderson, for plaintiff.

J.H Benton, Jr., for defendant.

OPINION

C ALLEN, J.

The plaintiff's horses escaped from his stable, and passed over two strips of land which had been taken by the city of Boston for the purpose of making a new channel for Stony brook, and went upon the defendant's railroad track, where they were run over by a train. There was no fence between the track and the lands taken by the city. The question is whether the city took a fee in either of the two strips of land, or only an easement. If it took a fee, the horses were trespassing, and as trespassers, went upon the railroad track, and the plaintiff cannot recover. If the city did not take a fee, or such title as to make the horses trespassers, then the plaintiff can recover, since the defendant owed to him the duty of building a fence. Pub.St. c. 112, § 115. The city took land twice. The first taking was under St.1874 c. 196, § 1, which contained a provision that "the title to all lands so taken shall vest in said city." Under this statute the city had a right to take a fee, but it did not do so. It took a strip of land, reserving to the owners "the right to erect and maintain buildings over and upon said brook, and to use the waters of said brook so far as said acts may not obstruct the free flow of said waters; it being the intention of this taking to acquire merely the right to improve the channel of said brook." This was not such a taking as that referred to in Page v. O'Toole, 144 Mass. 303, 10 N.E. 851, where, under a similar statute, there was a taking in which no rights were reserved to the owner, and where, accordingly, it was held that the city took a fee. In the present case, only an easement was taken. The second talking was under St.1887, c. 428, which contained no provision that the title to lands taken should vest in the city. The city, therefore, took only such estate as is necessary to carry out the purposes for which it was permitted to take the lands. Attorney General v. Aqueduct Co., 133 Mass. 361, 365; Clark v. Worcester, 125 Mass. 226, 231. The original owner might make all such use of the land as was consistent with the easement taken. The authorized purpose of the taking was to make a new channel, covered or uncovered, for the brook. St.1887, c. 428. This purpose was specified in the...