French v. Jones

• Decision Date: 16 May 1906
• Parties: FRENCH v. JONES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

191 Mass. 522

78 N.E. 118

FRENCH v. JONES.

Supreme Judicial Court of Massachusetts, Suffolk.

May 16, 1906

COUNSEL

Powers & Hall, for petitioner.

Chas E. Stearns, for respondent.

OPINION

SHELDON J.

The first question presented in this case is whether the petitioner has became the absolute owner of the rails and tracks laid by the street railway company and now lying on and imbedded in the surface of one of the public streets. He purchased all the property of the company at a sale properly made by duly appointed receivers of the company, and the receivers made a proper transfer to him. It is provided by Rev. Laws, c. 112, § 12, that 'a receiver of the property of a street railway company may, by order of the court, sell and transfer the road and property of such company, its locations and franchises, on such terms and in such manner as the court may order. The purchasers from such receiver, and a corporation organized under the provisions of the following section, if such road has been transferred to it, shall hold and possess said road, all its rights and franchises and all property acquired in connection therewith with the same rights and privileges and subject to the same duties and liabilities as the original street railway company; but no action shall be brought against such purchaser or such new corporation to enforce any liability incurred by said original corporation, except debts and liabilities owing from said original corporation to any city or town within which the road is operated and taxes and assessments for which said original corporation is liable under the statutes relating to street railways, which shall be assumed and paid by said new corporation. The provisions of this section shall not impair the powers of the holders of an outstanding mortgage to enforce their rights by suit or otherwise.'

Section 13 of the same chapter provides that the purchasers at such a sale shall within 60 days thereafter organize a corporation for the purpose of holding, owning and operating the street railway purchased, and that if they fail to organize such a corporation in the manner therein prescribed, all rights and powers to operate the road shall thereupon cease. The respondent contends that the petitioner, never having organized or intended to organize such a corporation, and never having intended in any way to operate the street railway or cause it to be operated, but having made his purchase for the purpose only of removing and selling the rails, was not such a purchaser as is contemplated by the statute, and did not acquire any right to the property. We think however that the title to the property sold by the receivers did pass to the petitioner. It may be granted that the sections of the statute to which we have referred contemplate the continued operation of a street railway which has been sold under the authority that they give. But no such requirement is made in terms; and the provision in section 13 that upon failure to form a corporation to hold and operate the railway the right and power to operate it shall cease, is far from being tantamount to a provision that the purchasers shall suffer the further penalty of being deprived of the property which they have bought and paid for. The receivers have full power to make the sale; it is their duty to do so when ordered by the court which has appointed them; they have no right or duty to inquire into and no means of ascertaining the motives or intentions of bidders or purchasers. We are of opinion accordingly that the petitioner is the absolute owner of the property in question.

But his right to remove the rails and other materials which are imbedded in the surface of the public street, and for that purpose to break and dig up the street depends upon other considerations. It has been decided by this court that these rails and materials remain personal property. Lorain Steel Co. v. Norfolk & Bristol Street Railway, 187 Mass 500, 73 N.E. 646. But they were laid by a street railway company in pursuance of a location granted to it and accepted by it and with the obligation to operate its road and thus to perform certain public duties; and they cannot be removed without digging up the surface of the street and making the public highway, at any rate partially and temporarily impassable. The petitioner does not contend that he has any right to remove the rails if he or the voluntary association which he represents is under any duty to operate this line as a street railway; and accordingly it becomes necessary to determine whether he is now under such a duty.

A street railway company, like a railroad corporation, has no power to alienate its franchise without permission of the Legislature. Richardson v. Sibley, 11 Allen, 65, 87 Am. Dec. 700. Our earliest statute upon this subject provided that 'no street railway corporation shall sell or lease its road or property unless authorized so to do by its charter or by special act of the Legislature.' St. 1864, p. 161, c. 229, § 24. And 'any alienation either in fee or for the period of its corporate existence or for any less term of substantially all its real and personal property, so as to disable it from carrying on the business which it had been chartered to do for the benefit of the public, is clearly within the terms and meaning of the prohibition.' Gray, J. in Richardson v. Sibley, ubi supra. And subject to certain limitations not material to the decision of this case, the same prohibition has since remained in force (Pub. St. c. 113, § 56; St. 1897, p. 241, c. 269; Rev. Laws, c. 112, § 85 et seq.), except that in 1900 power was given to the receiver of a street railway company to make such a sale of its road, property, locations and franchises as is here in question. St. 1900, p. 322, c. 381; Rev. Laws, c. 112,§§ 12, 13, 14. The petitioner's rights accordingly depend upon the provisions of these sections.

The respondent contends that as it is expressly provided by section 12 that the purchasers at such a sale 'shall hold and possess such road, all its rights and franchises, and all property acquired in connection therewith, with the same rights and privileges and subject to the same duties and liabilities as the original street railway company,' and by section 13 that they shall within a limited time organize a corporation for the purpose of holding, owning and operating the street railway, they are under the same obligation to operate the railway and to carry passengers as rested upon the original company; and that this obligation can be terminated only by an order of the board of aldermen or selectmen ordering the street to be cleared of the tracks under Rev. Laws, c. 112, § 36, or revoking the location under Rev. Laws, c. 112, § 32. Springfield v. Springfield Street Railway, 182 Mass. 41, 48, 64 N.E. 577. But under the last clause of section 13, ubi supra, the petitioner has now no right or power to operate a street railway over these tracks; and we cannot construe the statute as continuing the existence of this duty after its performance has been forbidden by the very terms of the statute. The language of these sections is indeed mandatory; but looking at the object to be attained, the realization of all the property of an insolvent corporation for the payment of its debts, considering the fact that the penalty imposed for the failure of the purchasers to organize a corporation and operate the railway is merely the loss of the right and power to carry on such operation, and the practical impossibility of continuing to operate a railway whose gross receipts are insufficient to meet its operating expenses, we are of opinion that the petitioner is not now under any duty to use these tracks for the operation of a street railway.

We have then, the case of an owner of personal property which is so imbedded in the surface of a public way that it cannot be removed without breaking and digging up the surface. This way is situated in Waltham; and the ordinances of that city provide that 'no person, unless authorized by law, shall break or dig up any part of any street or erect thereon any staging for building place thereon any lumber, brick, or other building materials without a written license from the superintendent of streets. Any person intending to erect or repair any building upon land abutting upon a street shall give notice to the superintendent of streets, who may, at the owner's request, set apart such portion of the street as he may deem expedient for such use. Such person shall, when required by the superintendent of streets, construct and maintain a suitable sidewalk around the obstruction, an shall, before the expiration of his license, remove all rubbish and restore such street to its former condition, to the satisfaction of the superintendent of streets. Every person so licensed shall, in writing, agree to indemnify the city against all damage or loss to the city accruing from the doing of any act or thing under such license, and sureties may be required in the discretion of the superintendent of streets, and every person who, when so licensed, shall obstruct or render unsafe any public street or sidewalk shall guard the same by a proper fence or railing and by lights during the nighttime, subject to the approval of the superintendent of streets. Such license may be revoked at any time by the superintendent of streets.' Without a license granted by the superintendent of streets under this section, the petitioner cannot break or dig up any part of the way, and so cannot remove these rails. They have a value for a resale of more than six thousand dollars; but they are valueless to the petitioner unless they can be removed. The operation of a street railway line over these tracks never has...