Easthampton v. County Com'rs of Hampshire

• Decision Date: 24 September 1891
• Citation: 154 Mass. 424,28 N.E. 298
• Parties: EASTHAMPTON v. COUNTY COMMISSIONERS OF HAMPSHIRE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 424

28 N.E. 298

EASTHAMPTON v. COUNTY COMMISSIONERS OF HAMPSHIRE.

Supreme Judicial Court of Massachusetts, Hampshire.

September 24, 1891

COUNSEL

D. Hill, for petitioners.

W.G Bassett, for respondent.

OPINION

HOLMES J.

The short question before us is whether county commissioners can take a strip of land from a school-house lot for a town way. Taking the strip will injure the lot considerably for school purposes, but will not prevent its use, so far as appears. We must assume that the way is necessary, and, if it be material, we must assume that taking this strip is reasonably necessary for the way, whoever may be the final judge on the latter question when it is raised.

The case thus presented lies in the doubtful region between two extremes which are free from doubt. Ordinarily, a highway or railroad could not be laid out longitudinally over a previously established railroad or highway by virtue of general statutory powers, or without special authority from the legislature. Bridge v. County Com'rs, 10 Pick. 270, 272; Springfield v. Railroad Co., 4 Cush. 63, 71; Boston & M.R. Co. v. Lowell & L.R. Co., 124 Mass. 368, 371. On the other hand, in the absence of special regulations, and by virtue of a general authority to lay out such roads, necessary crossings could be made. When we come to more difficult cases, we derive little aid from the varying statements of general principles under which authority will be implied to take land for a second public use. Railroad Co. v. Boston, 140 Mass. 87, 89, 2 N.E. 943; Providence & W.R. Co. v. Norwich & W.R Co., 138 Mass. 277, 279; Boston & M.R. Co. v. Lowell & L.R. Co., 124 Mass. 368, 370; Wellington, Petitioner 16 Pick 87, 105.

We must consider the relative importance and the necessities of the two uses generally, the extent of the harm to be done, accept any light that history may throw, and make up our minds under all the circumstances of the particular case as best we can. To put cases nearer to the present, and lying between the two extremes which we have mentioned, it would be a strong thing to say that without special circumstances county commissioners or other like officers acting under general powers could lay out a highway through a public reservoir, so as to ruin it. See State v. Railway Co., 35 N.J.Law 328; and, as further examples on this side, In re Boston & A.R. Co., 53 N.Y. 574; Railroad v. Williamson, 91 N.Y. 552. On the other hand, if a tract of land were held for public purposes, which was so broad that it was impracticable to go round it, and which could be crossed without serious harm by the edge of a stream that flowed through it, it well might be held lawful for the way to cross it. See Wood v. Railroad Co., 68 Ga. 539. The proviso of our act of 1834, c. 187, § 1, the original of Pub.St. c. 82, §§ 29, 30, implies very clearly that any "railroad or other public easement already located" through a graveyard was located lawfully. The law seems to be different in Connecticut. Association v. New Haven, 43 Conn. 234. When it is considered that very large tracts of land often are appropriated to school purposes, (see St. Oct. 3, 1782, 1 Mass.Sp.Laws, 33, 34; March 23, 1784, 1 Sp.Laws, 72; March 11, 1791, 1 Sp.Laws, 303; Nov. 17, 1792, 1 Sp.Laws, 399; March 3, 1801, 2 Sp.Laws, 425,) it is impossible to accept an unqualified rule that no part of such land can be taken for a way under any circumstances without an express enactment. In the only case which we have found precisely parallel to this, it was held that the strip was lawfully taken from the school lot. Rominger v. Simmons, 88 Ind. 453. See, also, Railway Co. v. State, 3 Ind. 421, 425.

The converse case of an...