Farwell v. City of Boston

• Decision Date: 26 February 1902
• Citation: 62 N.E. 751,180 Mass. 433
• Parties: FARWELL v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

180 Mass. 433

62 N.E. 751

FARWELL v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1902

COUNSEL

Robt. M. Morse and L. C. Southard, for petitioner.

Thos M. Babson, City Sol., for respondent.

OPINION

LORING J.

This is a case arising out of the alteration in the grade crossing of Dorchester avenue by the Old Colony Railroad, made in pursuance of St. 1897, c. 519. The alteration made in the case of this crossing consisted in the entire abandonment of the railroad location for a distance of over a mile, a new location for the tracks of the Old Colony Railroad along the shore of South Cove, and the layout of a new highway over the railroad location which had been abandoned. Before the change in grade, the petitioner was the owner of a wood yard fronting on that part of the Old Colony's location which was abandoned. A spur track ran from the railroad into the yard, and all the wood used in the petitioner's business was brought to him over this track. A strip of the petitioner's land fronting on the railroad, and containing 17,918 square feet, was taken by the commissioners for the new highway; and this petition was brought to recover the value of the 17,918 feet of land taken, and the injury to the petitioner's land which was left. The petitioner introduced evidence that the most advantageous use of land in the neighborhood was for manufacturing purposes; that a connection with a railroad was of great importance, if not essential, to large manufacturing plants; and that by the relocation of the railroad, and the removal of the Old Colony's tracks, this lot of land had been rendered practically useless for the purposes for which it was used. The presiding judge instructed the jury that, in determining the amount of damages suffered by the petitioner, they could take into account not only the value of the land taken, but also the injury done to the land which was left, and, in considering the damage done to the land left, they could include the fact that before the alteration the land was so situated that spur tracks could be built running onto it, in accordance with the rule laid down in Railroad Co. v Blacker, 178 Mass. 386, 59 N.E. 1020. No question arose in Railroad Co. v. Blacker as to the right to recover for damages to the remaining land of the plaintiff, as well as for the land taken, under the rule of Lincoln v. Com., 164 Mass. 368, 41 N.E. 489. In that case the land taken was taken for the very alterations made in the ailroad, which cut off the plaintiff's access to the railroad tracks. But in the case at bar the injury to the plaintiff's remaining land, for which he seeks to recover, was not caused by land having been taken from him in making the alteration in the grade crossing. No land was taken from the plaintiff in the construction of the tracks in the new location. More than that, no land was taken from the plaintiff in the reconstruction of the old highway in its new place to avoid its crossing the railroad tracks at grade. The plaintiff's land was taken in the layout of a new additional way over the abandoned railroad location; that is to say, it was taken in a new enterprise, in no way connected with the alteration in grade, except that the abandonment of the railroad location presented the opportunity for a new highway in addition to the highway which formerly crossed the railroad at grade. It is therefore plain that had the rights of the parties depended on St. 1890, c. 428, as to the alteration of grade crossings, and on Pub. St. c. 49, § 14, as to the layout of public ways, the plaintiff would not have been entitled to the damages he now seeks to recover. For the purposes of this discussion, we assume, without deciding, that an alteration of a grade crossing under St. 1890, c. 428, is one indivisible thing, and that, if a part of the plaintiff's land is taken for the highway in its new location, and thereby the plaintiff's remaining land, which before the alteration was made had access to the railroad, is cut off from a railroad connection, he could have damages for that loss of access. But we are of opinion that under St. 1897, c. 519, the layout of the new highway is not to be treated as part of the alteration of the grade crossing in determining what damages an owner of land can recover when part of his land is taken for the new highway.

The circumstances under which St. 1897, c. 519, was enacted, were these: Prior to the enactment of St. 1897, c. 519, a petition had been filed by the city of Boston, under St. 1890, c. 428 for the abolition of the grade crossing in question, made by Dorchester avenue crossing the Old Colony Railroad at the same level; and commissioners had been appointed by the superior court to decide whether an alteration in grade was necessary...