In re R.R. Comm'rs

• Decision Date: 06 April 1891
• Citation: 22 A. 168,83 Me. 273
• Parties: In re RAILROAD COMMISSIONERS.
• Court: Maine Supreme Court

22 A. 168

83 Me. 273

In re RAILROAD COMMISSIONERS.

Supreme Judicial Court of Maine.

April 6, 1891.

(Official.)

Exceptions from supreme judicial court, York county.

From the bill of exceptions it appeared that, the railroad commissioners having declined to make any determination or award upon the terms and conditions for crossing the track of the Boston & Maine Railroad;with a town-way, in Kennehunk, the petitioners, the municipal officers of the town, upon the coming in of the report of the commissioners, moved its acceptance by the court. This motion was opposed by the railroad, and it asked for a recommittal, with directions from the court that "the commissioners take jurisdiction in the premises, and determine if such railroad track was in fact constructed before the way, described by the petitioners in their petition, was located; whether said way (1) shall be permitted to cross said track at grade therewith or not; and (2) the manner and condition of crossing the same; and (3) apportion the expense of building and maintaining so much thereof as is within the limits of such railroad between said inhabitants of Kennebunk and said Boston and Maine Railroad, and, if otherwise, then to determine the manner and conditions of the crossing of said way by said railroad."

The court ordered the report to be accepted, and denied the motion to recommit. The railroad thereupon filed its exceptions to the ruling and refusal by the court.

The railroad commissioners give, In their report, the reasons for declining to take jurisdiction, which are as follows:

"It appeared from the view aforesaid, and from the evidence elicited at said hearing, that the Boston and Maine Railroad, prior to the location and establishment of said town-way, had. at the request of the Mousam Manufacturing Company and others, and by permission of the landowners, constructed a spur track from their main line, near the station in Kennebunk, to the manufacturing establishment of said company and others in said village; that the town-way aforesaid, as located, crosses said spur track near a shoe-factory recently erected there.

"It is not the province or duty of the board to determine the legal rights of the parties interested; neither is it necessary to give any opinion relative thereto, further than to state the views of the board as to their jurisdiction of the subject-matter.

"Section 18. c. 51, of the Revised Statutes is as follows:

"'Any railroad corporation, under the direction of the railroad commissioners, may locate, construct, and maintain branch railroad tracks to any mills or manufacturing establishments erected in any town or township, but not within any city through which the main line of said railroad is constructed, without the consent of the city council; and for that purpose said corporation shall have all the powers and rights granted, and be subject to all the duties imposed upon it, by its charter.'

"That a railroad company may construct a spur track on their own land, or over that of any other, by permission, to a manufacturing establishment or elsewhere, provided the public interests are not concerned, we do not doubt; but if the public have in such lands, or there after acquire, rights or interests therein, we doubt if such track would be legally established, except by special charter, or by the mode above prescribed. It did not appear that the Boston and Maine Railroad had ever been granted, by charter or otherwise, the right to locate and construct said spur track, except from the land-owners above mentioned.

"Under these circumstances, have the Boston and Maine Railroad, by merely constructing a line of spur track, as above set forth, acquired 'all the powers and rights granted, and are they subject to all the duties imposed upon them, by their charter?' If not, then, as we view it, the town had the right to lay out and establish the town-way without regard to such railroad track or the location of it. True, there is a track laid there; but is such track, placed there in the manner the evidence discloses it to have been, a railroad track, within the meaning of the statutes? In other words, does the mere laying down of sleepers and rails over a certain territory, by the permission of the landowners, constitute it a railroad, within the meaning of the statute, so as to require town and cities, in laying out ways over land where such tracks have been laid, to ask the board of railroad commissioners to adjudicate upon the manner and conditions of...