Lancy v. City of Boston
| Decision Date | 21 June 1904 |
| Citation | 71 N.E. 302,186 Mass. 128 |
| Parties | LANCY v. CITY OF BOSTON et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W. O. Childs, for petitioner.
Philip Nichols, for respondent.
Choate & Hall, for New York, N.H. & H. R. R. Co. and Old Colony R Co.
This case comes before us on a report from the court of land registration. The question is as to the validity of the title of the petitioner to a tract of land, a part of which was taken for a public street, and a part for a railroad station of the New York, New Haven & Hartford Railroad Company, in connection with the abolition of grade crossings on the line of the railroad. The taking in each was under St. 1896, p 268, c. 321, and the first question raised is whether this statute is constitutional.
The petitioner contends that because the statute purports to authorize commissioners appointed by the superior court upon a petition for the abolition of the grade crossing of the Old Colony Railroad on Tremont street, in Boston, to prescribe the manner in which the other grade crossings on the Providence Division of the New York, New Haven & Hartford Railroad Company in the city of Boston shall be abolished, it is unconstitutional, as an attempt of the legislative department to interfere in judicial proceedings. But this was not an attempt to interfere with judicial proceedings. The act simply gave the commissioners additional powers, to be exercised under the direction of the court, first, in reference to taking additional land for railroad or highway purposes; and, secondly, in reference to prescribing the manner of abolishing other grade crossings on another part of the railroad, which was not included in the proceedings then pending. All the parties interested in the new proceedings authorized were then presumably before the court--if not, they voluntarily came before the court--and there was nothing improper in the action of the commissioners, under the statute, without the filing of a new petition. They made a supplemental report in regard to the additional crossings and the taking of land, in accordance with the requirement of the statute. The action of the commissioners, and the action of the court upon the filing of their supplemental report, were a part of the judicial proceedings, and there is no valid objection to the statute, or to these proceedings under it. In re Petition of Northampton, 158 Mass. 299, 33 N.E. 568; Providence, etc., Steamboat Company v. Fall River, 183 Mass. 535, 67 N.E. 647; New London Northern Railroad Company v. Boston & Albany Railroad Company, 102 Mass. 386. St. 1890, p. 327, c. 428, to which this is an addition, had been held constitutional. Selectmen of Norwood v. New York & New England Railroad Company, 161 Mass. 259, 37 N.E. 199; Gately v. Old Colony Railroad Company, 171 Mass. 494, 51 N.E. 5.
Land was taken for a public way in connection with the abolition of the crossing, and other land was taken outside of the location of the railroad, five road in width, for the construction of a new station required by public convenience and necessity in consequence of the abolition of the grade crossing. Upon the record before us, it does not plainly appear whether the land taken for highway purposes was for such a change as could be made, and as would require the taking of land, under St. 1890, p. 464, c. 428; and it is at least a grave question whether, under that statute, land could be taken for the erection of a passenger station outside of the location. The respondents in the present case find authority for the taking in that part of St. 1896, p. 268, c. 321, which authorizes the commissioners 'to consider whether public necessity and convenience require any additional land to be taken for railroad or highway purposes in connection with the abolition of such crossings, and if so, to prescribe the limits within which the same may be taken.' The crossings referred to in this sentence are those which the commissioners had been authorized previously to consider and report upon. That the authority was ample to warrant the taking of lands in the abolition of these crossings is unquestioned. Whether the further provisions, giving the commissioners authority to prescribe the manner in which other grade crossings should be abolished, gave the court power, on their report, to take additional land for railroad or highway purposes, in connection with the proposed changes in these other crossings, is a question not free from difficulty. All parties before the court, as well as the commissioners themselves, seem to have assumed that they did. The superior court, by its decree confirming the report, so decided. On the whole, in view of the fact that the recommendations in regard to the additional crossings and the taking of the additional land were to be embodied in one supplemental report, with a provision that 'the acceptance of such supplemental report shall be a taking of the land required to be taken for railroad and highway purposes,' we are inclined to hold that the right to take additional land was, by implication, imported into the authority to prescribe the manner in which the other crossings should be abolished, and that the taking by them for the way and for the construction of the station was legal.
The report was accepted by a decree of the superior court on April 24, 1897. By the express terms of the statute,...
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