Davis v. New England R. Co.

• Decision Date: 17 June 1908
• Citation: 85 N.E. 475,199 Mass. 292
• Parties: DAVIS McKEOWN v. NEW ENGLAND R. CO. et al. McKEOWN v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

199 Mass. 292

85 N.E. 475

DAVIS McKEOWN v. NEW ENGLAND R. CO. et al. McKEOWN v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

June 17, 1908

COUNSEL

Samuel M. Child and Malachi L. Jennings, for plaintiff.

Benton & Clarke, for respondents.

OPINION

MORTON J.

These are petitions for the assessment of damages alleged to have been caused by the abolition of the grade crossing on Dudley street in Boston. The cases come here on report after a demurrer in each had been overruled, and the question is the same in both. They were argued together and we proceed to consider them together. The McKeown petition after describing the premises and after referring to the decree of the superior court under which the defendants have acted, alleges that the defendants 'have caused and are causing great damage to the petitioners' property by the erection of retaining walls on Norfolk avenue in front of and along the side of and in the rear of the plaintiff's property causing him great and permanent loss in the value of the same and that said defendant companies in pursuance of said order and in doing the work thereunder have caused your plaintiff great damage by the erection of the temporary bridges over said Norfolk avenue and upon and against your plaintiff's property over which said bridges said companies have caused to be run during the prosecution of said work a great many trains daily, that the grade of the said road bed of said railroad had been raised a great height shutting out your plaintiff's light and air and otherwise impairing the value of his property.' The allegation in the Davis petition is that the defendants 'have caused and are causing your plaintiff great damage to his property aforesaid by the building against his property of a high granite retaining wall impairing your plaintiff's right to light and air and reducing the value of your plaintiff's property by a large amount.'

The defendants contend that the remedy of the plaintiff McKeown if any, for the erection of temporary bridges upon his property and running trains over the same is in tort; that neither the plaintiff McKeown nor the plaintiff Davis has any remedy at common law for any damages caused by the building by the defendants of retaining walls upon their own premises even though the result is to shut out light and air from the premises of the petitioners and that neither has any remedy under the statute in regard to the abolition of grade crossings for the reason that in neither case does the petition allege any taking of land or an easement therein or the change or discontinuance of a private way.

It does not appear in either of the petitions when the proceedings for the abolition of the crossing were instituted. But it is said in the briefs for the petitioners that the petition for the abolition of the crossing was filed under Rev. Laws, c 111, §§ 149-160, inclusive; and this is also stated in substance in the brief of the defendants, and we assume the fact to have been as both parties seem to agree that it was.

Rev Laws, c. 111, § 153, as amended by St. 1905, p. 351, c. 408, § 3, and St. 1906, p. 495, c. 463, pt. 1, § 37, which was the law in force at the time of the entry of the decree in the superior court provides in regard to the liability of railroad corporations as follows: 'All damages which may be caused by the taking of land for the railroad or by the change or discontinuance of a private way, or by the taking of an easement in land adjoining a private way or a railroad location in connection with the abolition of a grade crossing shall primarily be paid by the railroad corporation; and all damages which may be sustained by any person by the abolition of private ways, except as hereinbefore provided, shall be entirely paid by the railroad corporation. If the parties interested cannot agree upon said damages any party may have the damages determined by a jury in the superior court * * * in the same manner as damages may be determined which are caused by the taking of land for the locating of railroads and the laying out or discontinuance of public ways, respectively.' The original grade crossing act provided for the determination of the damages 'in the same manner and under like rules of law as damages may be determined when occasioned by the taking of land for the locating and laying out of railroads and public ways, respectively.' The words 'and under like...