Connecticut R. R. Co. v. County Comm'rs of Franklin

Decision Date24 June 1879
Citation127 Mass. 50
PartiesConnecticut River Railroad Company v. County Commissioners of Franklin
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Argued January 24, 1879

Franklin. Petition for a writ of prohibition. The case was heard and reserved by Soule, J., upon the petition and answer, for the determination of the full court, and is stated in the opinion. It was first argued at the bar, and was afterwards submitted on briefs to all the judges.

Writ of prohibition to issue.

N. A Leonard, for the petitioner.

C Delano, for the respondents.


Gray C J.

By the St. of 1878, c. 277, it is enacted that the manager of the Troy and Greenfield Railroad and Hoosac Tunnel (of which the Commonwealth, under previous statutes, had become the owner) shall, under the direction of the Governor and Council, construct a union passenger station in Greenfield to be used for the Connecticut River Railroad Company, the Fitchburg Railroad Company, and other corporations using or operating the Vermont and Massachusetts Railroad, and by all corporations using or operating the Troy and Greenfield Railroad in Greenfield, and by the said manager and his employees for their purposes. This statute contains the following sections:

"Sect. 6. For the purposes of this act, the said manager, under direction of the Governor and Council, may take all land necessary, from land of the Connecticut River Railroad Company or other parties, in manner provided by law for the taking of land for depot and station purposes by railroad corporations, so far as the same may apply: provided, that for the purposes of this act no land of the Connecticut River Railroad Company lying easterly of Clayhill Street, or the highway leading therefrom from Greenfield to Deerfield, or within four feet of the westerly rail of their main track, shall be taken without the consent of said company. The land taken under the provisions of this section shall be paid for from the earnings of the Troy and Greenfield Railroad and Hoosac Tunnel. All persons or corporations, aggrieved by any award of damages for land so taken, shall have a right to trial by jury thereon in manner provided by law in such cases."

"Sect. 8. For the purposes of this act, a sum not exceeding nine thousand dollars is hereby appropriated, to be paid from the earnings of the Troy and Greenfield Railroad and Hoosac Tunnel."

The Governor and Council, acting under the provisions of this statute, directed said manager to enter upon and take a parcel of land of the Connecticut River Railroad Company, situated on the westerly side of Clayhill Street in Greenfield, for such a station; and on December 9, 1878, the manager entered and took possession thereof accordingly, and presented a petition to the county commissioners of the county of Franklin, praying them to determine and award such damages to the Connecticut River Railroad Company, for the taking of its land, as might seem just. The Connecticut River Railroad Company, having been served with notice of that petition, appeared by counsel before the county commissioners, and objected to their assessing and determining such damages, or assuming any jurisdiction in the premises. But the county commissioners overruled the objection, and postponed further hearing on that petition to a future day.

The Connecticut River Railroad Company thereupon applied to a justice of this court for a writ of prohibition to the county commissioners, upon the ground that this statute is unconstitutional, because no provision is made, therein or otherwise, for the reasonable compensation of the Connecticut River Railroad Company for the land so taken, and therefore the county commissioners have no jurisdiction to assess the damages. It is alleged in the answer of the county commissioners, and agreed in writing filed in the case to be the fact, that "the earnings of the Troy and Greenfield Railroad, out of which said land damages are payable, will probably be amply sufficient to meet and extinguish all future, as they have all recent, claims for land damages."

Two questions are presented by the case, and have been argued by counsel: First. Whether the St. of 1878, c. 277, is unconstitutional, for want of a sufficient provision for the payment of compensation for the land taken? Second. Whether the writ of prohibition is a suitable remedy?

The Constitution of the Commonwealth declares that, "whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor." Declaration of Rights, art. 10. It has long been settled by the decisions of this court, that a statute which undertakes to appropriate private property for a public highway of any kind, without adequate provision for the payment of compensation, is unconstitutional and void, and does not justify an entry on the land of the owner without his consent. Commonwealth v. Peters, 2 Mass. 125. Perry v. Wilson, 7 Mass. 393. Thacher v. Dartmouth Bridge, 18 Pick. 501. "Under our Constitution," said Chief Justice Shaw, "the act conferring the power must be accompanied by just and constitutional provisions for full compensation to be made to the owner. If the government authorizes the taking of property, for any use other than a public one, or fails to make provision for a compensation, the act is simply void; no right of taking as against the owner is conferred; and he has the same rights and remedies against a party acting under such authority, as if it had not existed." Boston & Lowell Railroad v. Salem & Lowell Railroad, 2 Gray 1, 37. So in a case of laying out as a public highway a bridge owned by a private corporation, Mr. Justice Colt said: "The duty of paying an adequate compensation, for private property taken, is inseparable from the exercise of the right of eminent domain. The act granting the power must provide for compensation, and a ready means of ascertaining the amount. Payment need not precede the seizure; but the means for securing indemnity must be such that the owner will be put to no risk or unreasonable delay." Haverhill Bridge v. County Commissioners, 103 Mass. 120, 124.

In Rogers v. Bradshaw, 20 Johns. 735, 744, cited by the learned counsel for the respondents, the decision was that the statutes applicable to the case, construed together, expressly provided for the estimate and payment of the damages, and that such payment need not be actually made before the entry upon the land; and the dictum of Chancellor Kent, that an omission of the Legislature to provide for compensation might not have made the entry a trespass, is opposed to the course of decisions in this Commonwealth, and has not been followed in New York. In Bloodgood v. Mohawk & Hudson Railroad, 18 Wend. 1, 17, Chancellor Walworth, while admitting that the Legislature might authorize the land of an individual to be entered upon for the purpose of examination or of making preliminary surveys, without compensation, said: "But it certainly was not the intention of the framers of the Constitution to authorize the property of a citizen to be taken and actually appropriated to the use of the public, and thus to compel him to trust to the future justice of the Legislature to provide him a compensation therefor. The compensation must be either ascertained and paid to him before his property is thus appropriated, or an appropriate remedy must be provided, and upon an adequate fund; whereby he may obtain such compensation through the medium of the courts of justice, if those whose duty it is to make such compensation refuse to do so. In the ordinary case of lands taken for the making of public highways, or for the use of the state canal, such a remedy is provided; and if the town, county or state officers refuse to do their duty in ascertaining, raising or paying such compensation in the mode prescribed by law, the owner of the property has a remedy by mandamus to compel them to perform their duty. The public purse, or the property of the town or county upon which the assessment is to be made, may justly be considered an adequate fund. He has no such remedy, however, against the Legislature to compel the passage of the necessary laws to ascertain the amount of compensation he is to receive, or the fund out of which he is to be paid." And in People v. Hayden, 6 Hill 359, 361, Chief Justice Nelson said: "Although it may not be necessary, within the constitutional provision, that the amount of compensation should be actually ascertained and paid before property is thus taken, it is, I apprehend, the settled doctrine, even as it respects the state itself, that, at least, certain and ample provision must be first made by law, (except in cases of public emergency,) so that the owner can coerce payment through the judicial tribunals or otherwise, without any unreasonable or unnecessary delay." See also Rexford v. Knight, 1 Kernan 308, 314; Chapman v. Gates, 54 N.Y. 132, 146.

Statutes taking private property for a public highway, and providing for the ascertaining of the damages, and for payment thereof out of the treasury of the county, town or city, have often been held to be constitutional. Haverhill Bridge v County Commissioners, 103 Mass. 120. Chapman v. Gates, 54 N.Y. 132. Loweree v. Newark, 9 Vroom 151. Yost's Report, 17 Pa. 524. Powers v. Bears, 12 Wis. 213, 220. Commissioners v. Bowie, 34 Ala. 461. But, in the cases in which it has been so held, the liability to pay the damages rested upon the whole property of the inhabitants of the municipality, and might be enforced by writ of execution or warrant of distress, or by mandamus to compel the levy of a general tax. Hill v. Boston, 122 Mass. 344, 350. Rose v. Taunton, 119 Mass. 99, 101. Bloodgood v....

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