Derby v. Framingham & L. R. Co.
| Decision Date | 14 February 1876 |
| Citation | 119 Mass. 516 |
| Parties | Benjamin Derby v. Framingham and Lowell Railroad Company |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Middlesex. Petition in equity, under the Gen. Sts. c. 63 § 43, 44, to compel the respondent to erect suitable fences between its land and the land of the petitioner. The answer alleged that the land which the petitioner desired to have separated by a fence was owned by the respondent. The case was submitted to the judgment of the court upon an agreed statement of facts, in substance as follows:
On March 23, 1872, the petitioner was the owner of a certain tract of land in Concord, containing about ten acres. On that date, the respondent filed in the office of the clerk of the county commissioners of Middlesex County its location over the whole of said tract of land, and on the same day presented a petition to the county commissioners to approve of the confirm the location of its road over the land of the petitioner. On October 10, 1872, the petitioner conveyed to the respondent a portion of the lot, containing four acres. On July 23, 1873, the county commissioners ordered that the respondent have leave, in accordance with its petition, to take the lands embraced in the location filed by it. The petitioner, who owned no land adjoining the land embraced in the alleged location, contended that the respondent should erect a fence between the parcel of land conveyed by his deed and the remainder of the tract embraced in the alleged location. Wells, J., entered a decree for the petitioner; and the respondent appealed.
Decree affirmed.
S Hoar, for the petitioner.
G. A Torrey, for the respondent.
A railroad corporation has no right to take and appropriate to its own use lands of any person without a strict compliance with the provisions of the statutes which authorize it so to do. The Gen. Sts. c. 63, $ 19, expressly provide that lands without the limits of its railroad shall not be taken without permission of the owner, unless the county commissioners "first prescribe the limits within which the same may be taken." As no such limits were prescribed by the commissioners before the respondent in this case filed its location over the land in question, it acquired no right, against the will of the owner, in any part of the land outside the limits of its road; so much of this land as had not been conveyed to the...
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