in re City of Waltham

• Citation: 206 Mass. 208,92 N.E. 477
• Parties: In re MAYOR AND ALDERMEN OF CITY OF WALTHAM.
• Decision Date: 24 June 1910
• Court: United States State Supreme Judicial Court of Massachusetts

206 Mass. 208

92 N.E. 477

In re MAYOR AND ALDERMEN OF CITY OF WALTHAM.

Supreme Judicial Court of Massachusetts, Middlesex.

June 24, 1910

COUNSEL

Dana Malone, Atty. Gen., and Frederic B. Greenhalge, Asst. Atty Gen., for the Commonwealth.

W. H Coolidge and G. S. Selfridge (Coolidge Hight, of counsel) for B. & M. R. R. and Fitchburg R. Co.

Winfield S. Slocum, for City of Waltham.

OPINION

MORTON, J.

This is a petition under Rev. Laws, c. 111, as amended by St. 1902, c. 440, for the abolition of certain grade crossings of the Fitchburg Railroad in the city of Waltham. Pending the petition St. 1906, c. 463, was enacted. Commissioners were duly appointed by the superior court and after due hearing made a report which provided amongst other things that 'the roadbed of the Fitchburg Railroad shall be graded to a width sufficient for four tracks within the limits of the change, and the existing culverts and drains shall be extended or changed to conform to the new conditions.' The commissioners also provided for the building of certain stone bridges and abutments of a width sufficient to accommodate four tracks. The commonwealth and the Newton Street Railway Company objected to the report on the ground that the commissioners had no jurisdiction to provide a roadbed for four tracks throughout the entire limits of the proposed change, and on motion of the street railway company the report was recommitted, with directions to the commissioners to report fully and specifically all facts bearing on the question of the relative difficulty and expense of making a four-track railroad throughout the limits of the proposed change, in respect (1) to the existing situation; (2) the situation which would exist if the roadbed were raised and graded for four tracks as provided in the report; and (3) the situation which would exist if raised and graded as provided in all other respects, but only of sufficient width for the existing number of tracks. Upon the coming in of the supplementary report, the commonwealth and the street railway company renewed their objections to the jurisdiction of the commissioners in respect to the widening of the roadbed for four tracks. Their objections were overruled, and a final decree was entered that the report 'be and the same hereby is in all respects approved and confirmed.' The commonwealth and the street railway company appealed.

It appeared that within the limits of the proposed alterations there were for a portion of the distance, 29 per cent. of it, four tracks, for another portion, 15 per cent., three tracks, and for the rest of the distance, 56 per cent., two tracks; that the railroad had four tracks for portions of the distance both east and west of the proposed changes, and that rights of way had been secured, and all structures, except one or two overhead bridges, had been arranged for four tracks. It also appeared that in the abolition of grade crossings in the neighboring town of Belmont, between Waltham and Boston, the decree provided that the railroad should be graded and a stone bridge built wide enough for four tracks, and that that had been done. It further appeared that the estimated cost of providing for four tracks at the levels and grades determined by the commissioners would be $45,550 more than for the existing number of tracks at such levels and grades, or about 5 per cent. on the total estimated cost of the whole improvement, though, owing to the character of the construction that would be required, it would be less than the cost of providing for four tracks at the present levels and grades. The commonwealth is to pay 15 per cent. of the cost of eliminating the crossings at Main and Moody streets, and 25 per cent. of the remainder, and the street railway company is to pay 10 per cent. of the cost of altering the Main and Moody street crossings and nothing as to the rest. The railroad company is to pay 65 per cent. of the total cost, and the city of Waltham 10 per cent. of it.

The commissioners found and reported that 'in the near future the requirements of traffic will make it reasonably necessary to provide four tracks on the main line to Waltham and beyond,' and that it appeared to them that, 'if they have jurisdiction to provide for any traffic development upon the railroad, it was reasonable and proper to provide for four tracks throughout the limits of the change. It did not seem to them proper to provide merely for the existing tracks, for this would have provided for grading for two tracks along part of the distance, for three tracks along another part, and for four tracks along another part. The commissioners provided for four tracks throughout because they believed that such was the proper plan to be adopted, considering that--as they would have power [to provide] in relocating a street to make it wider, if the present or future demands of traffic seemed to render such widening desirable, as is frequently done in abolishing grade crossings--there was equal reason for providing for four tracks upon the railroad, if the reasonable requirements of future traffic appeared to make such an increase of capacity desirable.'

The question is whether the commissioners had jurisdiction to provide for the widening of the roadbed so that it should be sufficient for four tracks throughout the limits of the proposed change. The reasons given by them for doing as they did and the facts found by them should that it will be to the advantage of the railroad company to have the roadbed widened so as to accommodate four tracks, and that prudent business...