Directors of Providence & W.R. Co. v. Town of Uxbridge
| Decision Date | 20 October 1898 |
| Citation | 172 Mass. 117,51 N.E. 459 |
| Parties | DIRECTORS OF PROVIDENCE & W.R. CO. et al. v. TOWN OF UXBRIDGE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John L. Hall, for petitioners.
Geo. S Taft, for Town of Uxbridge.
The items in dispute were disallowed by the auditor and by the justice of the superior court, and the question whether this was correct comes to us upon a report made by the justice. Although the language of the statute is that the report, when confirmed by the court, shall be final, still it is not to be construed as taking away the general authority of a single justice to report to the full court questions of law arising in equity. Pub.St. c. 151, § 20; St.1883, c. 223, § 2. The petitioners contend that the town has no standing here because it did not file in the superior court objections to the report, in accordance with equity rules 31 and 32 of that court. But the point does not seem to have been taken there and it is too late to raise it now. We are therefore brought to the question in the case, which is whether expenses incurred by a town in employing counsel to represent it in the superior court, and before a commission appointed to make separation of a grade crossing, under chapter 428 of the Acts of 1890, and in employing a civil engineer to prepare plans to present to the commission, should be allowed by the auditor, as part of the "cost of the hearing," under section 3, or as part of the "expense incurred by the town," under section 7 of that act, to be apportioned between the railroad company, the commonwealth, and the town. The legal services consisted in part in appearing at hearings in the superior court in opposition to the appointment of a commission, and representing the town in the selection of commissioners after the decision of the court to appoint; in part in opposing before the commission any abolition whatever; and in part advocating before the commission, after its decision to abolish the crossing, a different plan of separation from that presented by the railroad company. The engineering services consisted in preparing and presenting to the commission the town plans for the abolition. The commission adopted the railroad plan. The town, by vote at a town meeting, appointed a committee with authority to employ counsel and an engineer for the purposes stated. The reasonableness of charges is not in dispute. The seventh section of the statute simply provides the machinery by which the items named in the third section may be apportioned, and cannot be held to vary them in any way. The decision of the question therefore depends upon the interpretation to be given to the following language of the third section: "The railroad companies shall pay sixty-five per centum of the total actual cost of the alterations, including in such cost the cost of the hearing and the compensation of the commissioners and auditors for their services, and all damages including those mentioned in section five of this act." These items cannot be considered as a part of the total cost of the alterations. They were incurred before the decree for alterations was made, and in opposition to the decree, and not for the purpose of performing it. Instead of being incurred in carrying out the decree, they were incurred to prevent it. In these respects the case materially differs from Boston & A.R. Co. v. Inhabitants of Charlton, 161 Mass. 32, 36 N.E. 688. In this latter case the expenses were incurred by the town in a bona fide attempt to ascertain the land damages.
Nor do we think these items can be allowed as a part of the "cost of hearing" before the commission. A review of the history of the legislation on this matter is here instructive. When railroads were first established, the acts of incorporation usually authorized them to raise or lower highways so as to pass under or over them, and forbade the obstruction of highways. St.1826 c. 183, § 6; St.1829, c. 26, § 5; St.1830, c. 93, § 9; Id. c. 94, § 10; Id. c. 95, § 11; Id. c. 4, § 11; St.1833, c. 187. These provisions were incorporated in Rev.St. c. 39, §§ 66-68. The first statute authorizing proceedings for the abolition of grade crossings was St.1842, c. 22: "If the selectmen of any town, or the mayor and aldermen of any city, wherein any turn-pike, highway or townway, crossed by any railroad, on a level therewith, is situated, shall be of opinion that it is necessary for the security of the public that said turn-pike, highway or townway should be raised or lowered, so as to pass over or under said railroad, said selectmen, or mayor and aldermen, may, in writing,...
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