Hamlin v. New York, N.H. & H.R. Co.

• Decision Date: 30 March 1898
• Parties: HAMLIN et al. v. NEW YORK, N.H. & H.R. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 548

49 N.E. 922

HAMLIN et al. v. NEW YORK, N.H. & H.R. CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 30, 1898

COUNSEL

Robert M. Morse and Marcus Morton, for petitioners.

Benton & Choate, for defendants.

OPINION

MORTON J.

The principal question which it is attempted to raise in these proceedings, and which has been discussed by counsel, is whether the defendants have the right to erect and maintain gates across the way on their location, the report showing that they have erected and maintained gates on the exterior lines of their location across the whole width of the way 381/2 feet. We think that the question cannot properly be raised and considered in the manner in which it has been attempted to raise it in these proceedings. The original case was before the full court, and is reported in 166 Mass. 462 44 N.E. 444. After the decision in that case, a final decree was entered ordering the defendants to remove within 30 days all fences and barriers which they had constructed which interfered with the plaintiffs' right to use the way for foot passengers, animals, or vehicles of any kind, and enjoining them from interfering with the free use of the way for the purposes aforesaid by the plaintiffs, and requiring them to lay down and keep in repair a plank covering where the way crosses the railroad tracks. The decree concluded with a provision as to cuts, and this statement: "This decree is without prejudice to any right of the defendants to maintain proper gates or bars across said way." After this decree was entered, the defendants partially planked the way to about the width of 16 feet, and erected a gate on each side of the track, about 12 feet wide, across the way. Thereupon the plaintiffs brought a petition for contempt against the defendants for failure to comply with the decree. A hearing was had upon this petition and a decree was entered adjudging the defendants in contempt, so far as they had "failed to lay down a plank covering thirty-eight and one-half feet wide, and covering the whole space between the extreme outer rails of defendants' tracks and so much beyond the same as may be reasonably necessary," and "in so far as they have placed any fence within said thirty-eight and one-half feet." The decree ended as follows: "But it is declared hereby that a gate of thirty-eight and one-half feet is permitted by the final decree in this case." It is stated in the report that the defendants appealed from this decree, but that it was understood between the court and counsel that, by complying with its terms, the defendants should not lose any rights under the appeal; "and that, if the defendants should erect suitable gates, the question as to whether they should be obliged to provide a man to open them might be thereafter raised by another petition for contempt." The defendants complied with the terms of the last decree as to the planking, and removed the gates that were 12 feet in width, and erected the gates complained of. Thereupon the plaintiffs brought a second petition for contempt, and claimed at the hearing that the erection of the gates was a violation of the terms of the decree; that the defendants were not required by law to erect them; that it was done for the protection of their own interests; and that,...