Hyde v. Boston & W. St. Ry. Co.

• Decision Date: 26 February 1907
• Citation: 194 Mass. 80,80 N.E. 517
• Parties: HYDE v. BOSTON & W. ST. RY. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 80

80 N.E. 517

HYDE v. BOSTON & W. ST. RY. CO. et al.

Supreme Judicial Court of Massachusetts, Worcester.

February 26, 1907

COUNSEL

Frederick H. Nash, Frank W. Knowlton, and Choate, Hall & Stewart, for plaintiff.

Guy Murchie, for defendants.

OPINION

RUGG. J.

This case must be decided in the light of several recent decisions respecting the liability of street railway companies and municipalities for the construction of street railways in accordance with lications duly granted. Purington v. Somerset, 174 Mass. 556, 55 N.E. 461 was an action of tort for damages sustained by the plaintiff by reason of the lowering of a public highway upon which his land abutted by a street railway company acting under the authority of a location granted by the selectmen. The defendant was held not liable. Vigeant v Marlborough, 175 Mass. 459, 56 N.E. 708, and Underwood v. Worcester, 177 Mass. 173, 58 N.E. 589 were petitions under Pub. St. 1882, c. 52, §§ 15, 16 (Rev Laws, c. 51, §§ 15, 16), for the assessment of damages occasioned, in the first case by the raising and in the second by the lowering, of a street in front of the petitioner's premises by a street railway company acting in accordance with restrictions contained in locations. In both cases the petitioner was precluded from recovery on the general ground that the grant of location was made by public officers, who were not acting as agents of the municipality, and that the restrictions were reasonable. Hewett v. Canton, 182 Mass. 220, 65 N.E. 42, was an action of tort for damages caused by the overflow of water, growing out of obstructions in a gutter occasioned by the construction of a street railway under a legally granted location. In Laroe v. Northampton St. Ry. Co., 189 Mass. 254, 75 N.E. 255, the plaintiff sought by an action of tort to recover damages for the building of an embankment upon the highway in front of the premises, and the turning of surface water upon his property by a street railway acting under a lawful location. In the two latter cases judgment was for the defendant, for the reason that the primary and direct purpose of these changes in the grade of the highway was the construction of the street railway. If the highway was improved or harmed for the purposes of the public travel by such changes, this result is subsidiary and incidental. It came about through the action of public authorities over whom in respect of their public duties the municipality in its corporate capacity can exercise no control. Flood v. Leahy, 183 Mass. 232, 66 N.E. 787.

Since 1823 it has been the law of this commonwealth that no action of tort can be maintained for the changing of the grade, or raising or lowering the surface, of a highway by one authorized by law to do so. Callender v. Marsh, 1 Pick. 418. This case has been many times cited with approval and the principle it illustrates has been often applied. Inasmuch as the changes of grade in highways occasioned by the lawful construction of street railways are not made by those charged with the duty of keeping highways in repair, the statutes passed with the apparent intention of remedying the injustice wrought by the highway statutes as revealed in the decision of Callender v. Marsh, supra (Rev. St. c. 25, § 6; St. 1842, p. 538, c. 86, § 2; Rev. Laws, c. 48, § 27, c. 51, §§ 15, 16) afford no relief. At the time these statutes were enacted, the modern public service corporation entering upon highways and altering their aspect in such material respects as the erection of poles and wires, the mutilation of shade trees, and the changing of the grade, under the authority of public officers and uncontrolled by the municipalities, had not come into existence. In the earlier statutes authorizing the transmission of intelligence by electricity, provision for damages to abutting land owners was made, and when through a decision of this court a defect in the relief thus afforded was pointed out (Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7), the evil was remedied by a new statute at the next session of the general court. Additional enactments have been passed so that now the abutting landowner is afforded ample remedy for any damages he may sustain through constructions in the highway by electric light, heat, power, telephone and telegraph companies. St. 1849, p. 62, c. 93, § 4; St. 1884, p. 306, c. 306; St. 1895, p. 395, c. 350; Rev. Laws, c. 122, §§ 4, 5, 6. An examination of the recent as well as earlier statutes governing the construction of street railways shows that the Legislature has not yet imposed a like liability upon street railways, notwithstanding the numerous recent decisions of this court, in which remediless injury to abutters has been pointed out. See, in addition to cases above cited, McDermott v. Warren, Brookfield & Spencer St. Ry. Co., 172 Mass. 197, 51 N.E. 972; Williams v. Old Colony St. Ry. Co., 193 Mass. 305, 79 N.E. 484. St. 1894, p. 761, c. 548, authorizing the construction of the Boston Elevated Railway, however, contained ample provision as to damages to abutters. Baker v. Boston Elevated, 183 Mass. 178, 66 N.E. 711.

It only remains to inquire whether the condition in the location granted by the selectmen of Southboro to the defendant company, which required it to carry the highway over its tracks by a bridge, with the consequent change in grade, was legal. This location differs from that in the cases cited, in that it contemplated the crossing of the highway by the street railway at right angles, instead of a longitudinal construction within the way. The Legislature by St. 1901, p. 388, c. 455, authorized the defendant company in effect so to construct its railway between Boston and Worcester, that its tracks might lie largely outside the limits of public ways. It is probable that this statute did not extend the rights possessed by street railway companies organized under the general law to construct their tracks upon private lands. Whether this statute was anything more than a declaration of the general power possessed by street railway companies or not, its effect was undoubtedly to remove whatever doubt had theretofore existed as to the right of local authorities to grant locations to this street railway company to cross public ways substantially at right angles. If, however, the sole right of the defendant company to accept the location with its conditions granted it in Southboro rested upon this special statute, a different conclusion perhaps might be reached as to the plaintiff's rights. We assume upon the authority of Farnum v. Haverhill & Andover Street Railway Co., 178 Mass. 300, 59 N.E. 755, that the selectmen of Southboro were authorized to grant the defendant company a location to cross Center Road substantially at right angles, apart from St. 1901, p. 388, c. 455. A corollary of this proposition is that the defendant company was empowered to operate its street railway by the use of passenger cars which in size and speed might rival those of steam railroads. The crossing of public ways at grade by cars of this character driven at high rates of speed inevitably adds to the danger of life and limb of travelers upon the street railway as well as upon the highway. It had become the settled policy of the commonwealth long before the granting of the location in question to abolish crossings at grade of steam railroads and highways. St. 1890, p. 463, c. 428, St. 1906, pp. 519-523, c. 463, pt. 1, §§ 29 to 45. By chapter 440, p. 348, St. 1902 (St. 1906, pp. 519, 520, c. 463, pt. 1, §§ 29, 34, 35), which was enacted prior to the work complained of by the present plaintiff, street railway companies having locations in highways affected by the abolitions of highway grade crossings with steam railroads were made proper parties to the proceedings for abolition, and might be compelled to pay a part of the expense. In view of this policy of the commonwealth, in pursuance of which millions of dollars have been paid out of the public treasury already, the wisdom of the action of the selectmen of Southboro, in requiring the defendant company to carry its tracks under the highway, and in not permitting a crossing at grade, cannot be questioned. The condition imposing upon the defendant company the obligation of raising the highway not exceeding seven feet at the highest place for this purpose was reasonable and legal and was for the purpose of promoting the security of those lawfully traveling upon the highway. In its last analysis it is simply an exercise of the easement of travel.

Giving due weight to all these considerations, it must be held that the injury which the...