Gay v. Boston & A.R. Co.
| Decision Date | 31 March 1886 |
| Citation | 6 N.E. 236,141 Mass. 407 |
| Parties | GAY and another v. BOSTON & A.R. Co. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A.L. Soule, for defendant.
R.D Smith and M.M. Weston, for plaintiffs.
The land over which the plaintiffs claim a right of way was conveyed to the defendant's possession in 1832, after the location of the railroad over it. There was then a way across it for a cut from the highway to the remaining land, which had been used for several years, and which continued to be used until 1871 for such purposes. The deed contained a covenant by the grantor to maintain fences between her land and that conveyed. The fence was maintained on one side only. There were bars in the fence, on the line of the way, and planks were maintained by the defendant between the rails where the way crossed the railroad. The plaintiffs claim a right of way by prescription. The defendant asked for several rulings, all of which were refused, and which are not insisted on except as involved in the objection that the action cannot be maintained for reasons stated.
The principal objection is, as stated in the exception "That no right of way by prescription can be gained by an individual or these plaintiffs across a railroad regularly located." It is not denied that a private way may exist across a railroad. It can hardly be argued that such ways cannot be created by grant. The only statute providing for this is St.1841, c. 125, (Pub.St. c. 112,§ 113,) under which since 1841, the county commissioners are authorized, in assessing damages to land-owners, to request railroad corporations to construct embankments, drains, culverts, walls, fences, or other structures reasonable for the safety and benefit of the land-owners. It has been held that this statute included crossings. White v. Boston & P.R. Corp., 6 Cush. 421; Presbrey v. Old Colony & N. Ry. Co., 103 Mass. 1. This is the only provision by statute for acquiring a private right of way across a railroad, and applies only to land, damages for taking which have been assessed since 1841 by the county commissioners. Can this statute be the only means for acquiring such a right? That a land-owner, in conveying land for a railroad, may reserve a right of way, which must operate as a grant; that the railroad corporation, when settling with the land-owner for damages for land taken, may make a valid agreement to allow or maintain a crossing as one of the terms of settlement; and that a railroad corporation may, to the extent of its interest as owner of the land, or holder of the easement and franchise, grant a private right of way over its road,--are propositions which we believe have never been questioned, and which are recognized by statutes and decisions. Pub.St. c. 112, § 138; Boston Gas-light Co. v. Old Colony Ry. Co., 14 Allen, 444; Eames v. Worcester &...
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