Doon v. Inhabitants of Town of Natick

• Decision Date: 20 May 1898
• Citation: 171 Mass. 228,50 N.E. 616
• Parties: DOON et al. v. INHABITANTS OF TOWN OF NATICK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 228

50 N.E. 616

DOON et al. v. INHABITANTS OF TOWN OF NATICK.

Supreme Judicial Court of Massachusetts, Middlesex.

May 20, 1898

COUNSEL

W.B. Sprout, for petitioners.

P.H Cooney and H.C. Mulligan, for respondents.

OPINION

KNOWLTON J.

In abolishing a grade crossing, under St.1890, c. 428, the commissioners reported in regard to Cochituate street, on which the crossing was, as follows: "The location of Cochituate street remaining unchanged, said street shall pass over the railroad tracks by a suitable bridge, at a height of not less than sixteen feet in the clear above the grade of said tracks hereinbefore ordered. [ Then follow requirements for the descent of the grade in each direction to the existing level, for the construction of the abutments and superstructure of the bridge, and for other details of construction.] The said Cochituate street shall be graded to its full width, and the roadway shall have a dressing of good gravel," etc. "The gravel may be sloped beyond the limits of said Cochituate street so far as may be necessary to hold the embankment, and for this purpose the right and easement to enter upon the following parcels of land, and to construct and maintain the necessary slopes thereon, is hereby taken. Said parcels are bounded and described as follows: [Here follows a description of a certain parcel of land taken, as above set forth, from the petitioners, and for which taking damages are sought to be recovered in this proceeding.]"

The question is whether the right or easement acquired by the taking was only the right to slope the filling so far as it might be necessary to hold the embankment, or the right to use the land for purposes for which any land may be used over which a highway is located. The legislature may authorize a tribunal taking land for a public use to take a fee, or any right or easement in land according to the requirements of the use for which it is taken. Often discretion is given to the tribunal to take such an easement as they deem necessary. See St.1895, c. 488, § 4; Burnett v. Com., 169 Mass. 417, 48 N.E. 758. The statutes which authorize the laying out of highways and townways do not recognize the necessity or desirability of taking different kinds of easements for the construction of ordinary ways, but they provide for the location of ways over lands of private owners. A location under these statutes subjects the land to an easement for any kind of use...