Drury v. Midland Railroad Company

• Decision Date: 27 October 1879
• Citation: 127 Mass. 571
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Otis Drury, administrator, v. Midland Railroad Company & others

127 Mass. 571

Otis Drury, administrator, v. Midland Railroad Company & others

Supreme Court of Massachusetts

October 27, 1879

Norfolk.

Exceptions overruled.

C Allen & A. Lincoln, for the respondents.

W Gaston & W. A. Field, (J. C. Coombs with them,) for the petitioner.

Colt J. Ames & Soule, JJ., absent.

OPINION

Colt, J.

A petition to the county commissioners of Norfolk was presented by Cyrus Alger in 1854, to recover damages for land and flats taken by the location of the Midland Railroad Company in 1851. The proceedings upon this petition were continued by the commissioners until 1873, when the sum of $ 23,233 was awarded by them as damages against the railroad; and the corporation was ordered to give security for the payment of that sum, or for such damage as might be awarded by a jury. In 1875, the administrator of Alger's estate, being dissatisfied with the amount awarded, filed a petition to the Superior Court sitting in Norfolk County for a jury to assess his damages; and the case comes before us on exceptions taken by the respondents at the trial in that court.

1. Since the filing of the original petition, many changes have taken place in the ownership of the Midland Railroad Company. Its franchises, rights and property, subject to all its liabilities and obligations, passed by mesne conveyances through several different corporate organizations, to the Boston, Hartford and Erie Railroad Company, and were mortgaged by the latter in 1866 to Berdell and others, trustees. On the foreclosure of the Berdell mortgage in May 1871, they were transferred to the New York and New England Railroad Company, the present owner. See Ellis v. Boston, Hartford & Erie Railroad, 107 Mass. 1, 18.

At the trial, the last-named corporation, and the trustees of the Berdell mortgage, who were made respondents, appeared and resisted the petitioner's claim. They objected that the present owners of the railroad were not in any manner liable to pay the damages which might be recovered; and that the payment of the same could not be enforced legally against them, or against the railroad in their possession. The judge declined so to rule; and instructed the jury, that the respondents succeeded to the rights of the Midland Railroad Company, and took the railroad subject to this claim for damages.

The Midland Railroad Company, by its charter, was made subject to all the duties, liabilities and restrictions set forth in the Revised Statutes, and to all general laws which had been or might be passed relative to railroad corporations. St. 1850, c. 268. At the time of the taking of this land, railroad corporations were required to pay all damages occasioned by the taking, to be estimated by the county commissioners in the manner provided for the laying out of highways, and subject to a right of appeal to a jury. The corporation was required, if requested by the landowner, to give security to the satisfaction of the commissioners for the payment of the damages awarded, and the right to enter upon and use the land, except for surveys, was suspended until such security should be given. Rev. Sts. c. 39, §§ 56, 61. These provisions were reenacted in the General Statutes, with the further provision, that the commissioners may issue warrants of distress to compel the payment of damages awarded; that the right to enter upon the land shall be suspended if the corporation, after such warrant, or after an execution has issued, neglects to satisfy the same; and that this court shall have power to restrain the corporation from so entering. Gen. Sts. c. 63, §§ 33, 34. The same provisions are also incorporated into the St. of 1874, c. 372, which is entitled "An act to revise and consolidate all the provisions relating to railroads," and in the third section of which it is further declared that, when a railroad laid out and constructed by one corporation is lawfully maintained and operated by another, the latter shall be subject to the duties, liabilities, restrictions and other provisions, respecting the maintenance and operation of the road, in the same manner as if it had been laid out and constructed by the latter corporation.

By the St. of 1873, c. 289, the proceedings of the holders of the bonds secured by the mortgage to Berdell and others, in forming a corporation under the name of the New York and New England Railroad Company, were ratified and confirmed, and the New York and New England Railroad Company was made a corporation, and was vested with all the franchises, powers and privileges, and made subject to all the restrictions, duties and liabilities, set forth in the general laws, which then were, or might thereafter be, in force relating to railroad corporations. ^[*] It is plain from these statutory provisions, that the Legislature intended to give to the landowner, as an important means for securing the payment of his damages, the power to prevent the occupation and use of his land, unless payment was made or was amply secured by the corporation, and there is nothing which supports the claim that the owner is deprived of that security by the conveyance of the estate taken to another corporation. It is essential to the valid exercise of the right to take private property for public use, that the act authorizing it should provide adequate compensation to the owner. The power to take and the obligation to indemnify for the taking are inseparable. They are parts of one transaction. Haverhill Bridge v. County Commissioners, 103 Mass. 120. Connecticut River Railroad v. County Commissioners, ante, 50. It would require clear language to lead us to the conclusion that the Legislature intended, in any of its dealings with this corporation, to impair the security of the landowner. The provisions in his favor as to the right to occupy and use the land are applicable equally to the Midland Railroad Company and to the successors and assigns of that corporation. The latter take only what the former had a right to convey; they take subject to this claim for damages, with the right of the owner to enforce it in the manner pointed out by the laws then existing, or by subsequent statutes so far as those statutes give remedies for existing rights. They succeed only to the conditional right of occupation and use which the Midland Railroad Company had when it parted with its title. The right of the petitioner, if not strictly a lien, has at least the nature of a lien or incumbrance upon the land. See Boston & Providence Railroad v. Midland Railroad, 1 Gray 340, 359; New Bedford Railroad v. Old Colony Railroad, 120 Mass. 397.

It is not necessary now to determine whether the petitioner is entitled, against the present respondents, to the other remedies provided by the statutes, or whether the respondents are liable upon a warrant of distress or an execution for the damages recovered. It is sufficient that he has the remedy above pointed out. There has been as yet no application for any other.

2. Two questions affecting the jurisdiction of the county commissioners of Norfolk County, and of the Superior Court sitting in that county, over these proceedings, are presented by the exceptions. The respondents contend, that no part of the land taken was in the county of Norfolk. It is only where land owned by one person lies contiguously in different counties, that the commissioners of either county have jurisdiction. Gen. Sts. c. 63, § 23. Much evidence as to the location of the county line was introduced; ancient deeds, maps, plans and perambulations were relied on. It became necessary to ascertain the location of an ancient natural creek flowing through the flats, which was relied on by the respondents as fixing the true county line. It is plain from this bill of exceptions, that the true location of the line depended largely upon matters of fact; and it was agreed by the respondents, that the question might be determined by the court, without submitting any question of fact to the jury. The judge ruled that the land in question was in Norfolk County at the time it was taken. It does not appear that this ruling was founded on the construction of any written instrument, or any act of the Legislature. It may have depended on facts found by the judge, which are not reported. It cannot be said that the evidence was not sufficient in law to justify the finding; and this is the only question of law on this point.

3. It is also contended, that, even if a portion of the land was in Norfolk when taken, and the commissioners of that county had jurisdiction of the original petition, yet as the land was annexed to and became part of Suffolk County by the St. of 1869, c. 349, making the town of Dorchester part of the city of Boston, the petition for a jury in 1875 should have been presented in that county. Section 3 of this act, after giving to the courts of Suffolk jurisdiction over causes of action and proceedings in civil causes, and over all matters in probate and insolvency, which have accrued in the territory annexed, reserves to the several courts in Norfolk "jurisdiction of all actions, proceedings and matters, that shall have been rightfully commenced in said courts prior to the time when this act shall take effect;" and provides that "all suits, actions, proceedings, complaints and prosecutions, and all matters of probate and insolvency, which shall be pending within said territory, before any court or justice of the peace, when this act shall take effect, shall be heard and determined as though this act had not passed."

When the act took effect, the original petition was pending before the county commissioners of Norfolk. The petitioner had the right, if dissatisfied with the award of damages, to apply to the same board of commissioners for a jury. The...