in re Directors of Old Colony R. Co.
| Decision Date | 02 April 1895 |
| Parties | In re DIRECTORS OF OLD COLONY R. CO. In re LEFSTROM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
H.W Putnam, for petitioner.
J.H Benton, Jr., for the railroad company.
The justice of the superior court, by his report, presents two questions--First, whether Katherine C. Lefstrom, the petitioner for a modification of the report of the commissioners, is entitled, as matter of right, before confirmation of the decision of the commissioners, to become a party to the suit, and be heard in that court upon the question she raises; and, secondly, whether the court has power to revise the action of the commissioners, and try the question whether more land is taken than is reasonably necessary. If both of these questions are answered in the affirmative, the case is to be remanded for further proceedings; otherwise, her petition is to be dismissed. The questions depend on the construction to be put upon St.1890 c. 428, § 4. The proceedings are under that statute, and the subsequent statutes of 1892, c. 433, and 1893, c. 126. By the first-mentioned statute the legislature provided for the creation of a tribunal to determine all questions of fact involved in an application for the abolition of a grade crossing, namely, a board of commissioners consisting of three disinterested persons, to be appointed by the superior court. The statute prescribes the duties of these commissioners, and requires that they shall forthwith return their decision into the superior court. "The decree of the court confirming the decision of the commissioners shall be final and binding." The sentence last quoted is the only language in the statute which expressly gives the court power to deal in any way with the questions to be considered by the commissioners. This language gives the court power to confirm or reject the report. Selectmen of Norwood v Railroad Co., 161 Mass. 259, 37 N.E. 199; Kingman, Petitioner, 153 Mass. 566, 579, 27 N.E. 778, and cases there cited. If there were no such express provision, the general requirement that commissioners be appointed by the court, who are to make a report to the court, would impliedly give the court power to act upon the report. Boston & W.R.R. v. Western R.R., 14 Gray, 258; Wrentham v. Norfolk, 114 Mass. 561; Wyman v. Eastern R.R., 128 Mass. 346.
Persons whose land is taken under a decree of the commissioners are to receive compensation, and, if they fail to agree with the other parties interested in regard to the amount, they are entitled to an assessment by a jury. But such persons have no constitutional right to a hearing upon the question whether their land shall be taken. Lynch v. Forbes, 161 Mass. 302, 37 N.E. 437; Collins v. Holyoke, 146 Mass. 298, 15 N.E. 908; Brock v. Railroad Co., 146 Mass. 199, 15 N.E. 555; Holt v. City Council of Somerville, 127 Mass. 408; Kuschke v. City of St Paul, 45 Minn. 225, 47 N.W. 786. When charters have been granted to railroad corporations in this commonwealth, landowners along the route have never been made parties to the proceedings for fixing the location; and, under our general railroad law, when the route is to be fixed the only notice required is by publication and posting, which may or may not reach the individual owners whose land is taken. Pub.St. c. 112, § 39. In reference to the question what land shall be taken, the interest of landowners is to be considered only as they are a part of the public. The interest of every individual is to be regarded, so far as it is apparent, in determining what is the interest of the general public. Every public measure which has local features affects the interest of some members of the public more than that of others, and all interests should be weighed, in ascertaining the general interest. Landowners whose property is liable to be taken are not made parties by the statute now before us, and they have no legal right to be heard. Where notice of a hearing is given to the public, they may be heard, as a part of the public; and ordinarily, in cases of this kind, a tribunal whose action is liable to affect important interests desires to hear those who will be most affected. In this case it appears that the petitioner, Lefstrom, was fully heard by the commissioners on the question which she now desires to raise before the superior court. She was not an original party to the cause, and has not the rights of a party in any part of the proceedings. But after the commissioners had determined to take her land, and had filed in court their report of their doings, showing a taking of her land, she had an interest different from that of the general public in the question whether their report should be confirmed. The confirmation of the report, and the recording of it and of the decree of the court in the registry of deeds, would constitute a taking of the land which would be binding upon her. St.1890, c. 428, § 4. If there was error in the proceedings of the commissioners, she could not have it...
To continue reading
Request your trial