Howell v. New York, N.H. & H.R. Co.
| Decision Date | 21 May 1915 |
| Citation | 221 Mass. 169,108 N.E. 934 |
| Parties | HOWELL et al. v. NEW YORK, N.H. & H. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. Weston Allen and Henry W. Packer, both of Boston, for petitioners.
John L Hall and Stuart C. Rand, both of Boston, for respondent.
This single question presented by these exceptions is whether the petitioners can recover damages for injury to the prospect from their land and dwelling by reason of the construction of a railroad embankment in connection with the abolition of a grade crossing. The petitioner owned a parcel of land with a house and stable thereon situated on the easterly side of Mill street in the Dorchester district of Boston. Westerly of Mill street, on land somewhat lower in grade than the petitioners' land, ran the defendant's tracks crossing Mill street at grade about 230 feet away, and being at its nearest point across Mill street and the land of other owners about 200 feet from the petitioners' estate. The Mill street crossing at grade was eliminated by proceedings under the grade crossing abolition act. As a result, certain land of other persons about 200 feet or more from that of the petitioners was taken, the railroad was elevated 16 1/2 feet at a point opposite the petitioners' estate, bringing the grade of the tracks about on a level with the knob of the petitioners' front door, four tracks were constructed in place of two, the nearest one being 13 feet nearer to the petitioners' estate than either of the two existing before. Now the shortest distance between any part of the petitioners' land and the defendant's location is about 160 feet. The abutments of the bridge on which the tracks were carried over Mill street obstruct the view of that street from the petitioners' house, while the prospect in front is affected to the extend that a pond and other nearby country is cut off by the embankment.
It was held in Hyde v. Fall River, 189 Mass. 439, 75 N.E 953, 2 L. R. A. (N. S.) 269, that a landowner might recover for damages suffered in consequence of changes in a street in connection with a grade crossing abolition which were special and peculiar to him as distinguished from injuries sustained by him in common with the public at large, even though no part of his land were taken, thus overruling Rand v. Boston, 164 Mass. 354, 41 N.E. 484. In McKeon v. New England R. R., 199 Mass. 292, 85 N.E. 475, 20 L. R. A. (N. S.) 1061, it was determined that there could be no recovery where no land or easement in land had been taken from anybody. In the light of these decisions, the precise point now presented is whether it can be said as matter of law that damage to these petitioners is too remote, speculative or intangible to be recoverable under the statute.
The essential words of the governing statute, which in this respect have not been changed since R. L. c. 111, § 153, are in St. 1906, c. 463, pt. 1, § 37, as follows:
'All damages which may be sustained by any person in his property by the taking of land for or by the alterations of the grade of a public way, or by an abutter thereon by the discontinuance of such public way, to the same extent as damages are recoverable by abutters on ways discontinued by towns, or by the taking of an easement in land adjoining a public way, shall primarily be paid by the city or town; and all damages which may be caused by the taking of land for the railroad or by the change or discontinuance of a private way, or by the taking of an easement in land adjoining a private way or a railroad location in connection with the abolition of a grade crossing shall primarily be paid by the railroad corporation; and all damages which may be sustained by any person by the abolition of private ways, except as hereinbefore provided, shall be entirely paid by the railroad corporation.'
The precise effect of the decision of Hyde v. Fall River, 189 Mass. 439, 75 N.E. 953, 2 L. R. A. (N. S.) 269, in connection with Rand v. Boston, 164 Mass. 354, relates to the interpretation of the statute as to the extent of damages recoverable under the grade crossing abolition act. It was said by Holmes, J., speaking for the majority of the court in Rand v. Boston, that:
.'
The utmost scope of Hyde v. Fall River was to overrule this, which was the essence of the decision of Rand v. Boston, and to decide that the damage clause in the grade crossing abolition act was not narrower than that of the general highway law, but was the same in substance. There is no intimation anywhere in the opinion of Hyde v. Fall River that it was intended to say that the effect of the damage clause was enlarged over that governing the case where land was taken for highway uses under the general law. The chain of reasoning of the opinion is to establish the same rule of damages to property arising from the laying out of highways in grade crossing abolition proceedings as that prevailing where land was taken for laying out a highway under the general law. But that decision went to further. There is no rational ground for contending that the language of the damage clause of the grade crossing act is broader than that of the general highway statute. This is so plain that it is not necessary to pause for amplification. There is nothing in the facts of Hyde v. Fall River to warrant any other conclusion. The abutters there were 'left with a street nearly 15 feet high and only 40 feet away, built in front of their premises, over which teams are frequently passing.' 189 Mass. 440, 75 N.E. 953, 2 L. R. A. (N. S.) 269. It was in effect the widening of the street by the addition on the opposite side of another level for travel. Manifestly under the general highway damage clause there were damages special and peculiar to the abutter on the other side of the street. Although Hyde v. Fall River related only to that part of the grade crossing abolition statute which expressed the right to damages arising from the construction of highways, the reasoning of the opinion requires that it be applied to damages arising from the construction of the railroad. But that decision has no greater effect in the one class of damages than in the other. The rule of damages was not enlarged or magnified. It simply was restored as matter of statutory interpretation instead of being narrowed.
It follows that in assessing the damages occasioned by railroad constructions in connection with a grade crossing abolition the rule of damages established by the general railroad law for assessing damages by the construction of railroads is to be followed. That rule is found in St....
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