Lentell v. Boston & W. St. Ry. Co.
| Decision Date | 20 May 1909 |
| Parties | LENTELL v. BOSTON & W. ST. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Wm D. Turner and S. S. Fitzgerald, for petitioner.
Butler Cox, Murchie & Bacon, for defendant.
This is a petition for the assessment of damages under St. 1903, p 124, c. 163, for the erection and maintenance of a trestle on Boylston street in the city of Newton, in front of the petitioner's premises. It was agreed that, if the judge was of opinion that the petition could be maintained on the agreed facts and the testimony, he might order a formal verdict for the petitioner for $500. The judge ruled that the facts and evidence would warrant this verdict, and he directed the jury to return it accordingly. The question before us is whether this ruling was right.
This trestle was to carry the street railway over the tracks of the Boston & Albany Railroad. The petitioner owned two houses opposite the trestle, one occupied by himself and the other by a tenant. The trestle was a structure of timber, very similar to a coal trestle used for coal cars. It was constructed in the middle of the street, and it started east of the plaintiff's property at the grade of the street, and rose gradually as it went west until it got to a height above the railroad of 20 feet to the top of a board fence, built along on either side of it to a height 4 feet above the ties on which the rails were laid. In front of the plaintiff's house it was 12 feet to the top of the board fence. Although there was a plank on top on which one could walk, the public were prohibited from walking on it. There were bents, or upright posts, on which the stringers were laid, and there were braces placed in such a way that no vehicles could pass through. It was 15 feet wide at the base and 12 feet at the top. There were two tracks over it, but they were placed in such a way that the outward and inward bound cars, which used different tracks, could not pass on the trestle at the same time while going in opposite directions. The cars in use were large, heavy electric cars. The total length of the trestle on both sides of the steam railroad was about 600 feet, and the evidence tended to show that it was a great source of inconvenience and annoyance to the petitioner and his family in the use of his premises. It obstructed their view and the free entrance to their house from the front, and it obstructed the light and air. While it was being constructed the street between the plaintiff's house and the trestle was completely blocked with timber, so that horses and carriages could not get to the house, and so long as the trestle remained it was not safe to hitch horses or leave horses in front of the house, on account of the noise of the cars overhead. There were searchlights on the cars at night, which would make the rooms as light as day, and interfere with persons trying to sleep. Before the trestle was built the lights were too low to illuminate these rooms. Boylston street was constructed at this point with a reserve space in the middle, between two driveways, one on the northerly and the other on the southerly side of the street. The railway tracks and the trestle were constructed in this reserved space, and, after the construction of the trestle, it was impossible for a team to pass from the south roadway to the north roadway near the petitioner's house. The cars ran very fast over the trestle. When going up the trestle they seemed to be moving as fast as possible when their speed was 15 or 18 miles an hour. In going down the trestle they sometimes went as fast as 25 to 30 miles an hour. They made a great noise, and when going down the trestle the gong was clanged to warn travelers. The disturbance was such that it was almost impossible to get sleep in the petitioner's house before 11 or 12 o'clock at night.
Proceedings were begun in 1900 for a separation of the grades of the Boston & Albany Railroad and the street, and the work whereby this grade crossing was abolished was completed in August, 1906. The trestle was taken down and removed in July, 1908.
The effect of St. 1903, p. 124, c. 163, as it was construed in Lentell v. Boston & Worcester Street Ry. Co., 187 Mass. 445, 73 N.E. 542, was to leave the railway company liable to pay damages for the construction, maintenance and use of this trestle, if the street was thereby put to a use beyond that which was paid for under the general law, when the street was originally laid out. The declaration in section three, that this should be deemed not to be an additional easement or servitude, was coupled with a provision for compensation to any person legally damaged in his property by the construction, maintenance or use of the trestle. This was equivalent to a statement that the Legislature did not assume to determine finally whether the street could be put to such a use without compensation to abutters.
The trestle, in its effect upon the street at this point, and upon the plaintiff's houses, was very similar to the elevated railways which have been built in large cities in recent years. In its effect upon the use of the street by travelers with horses, it was, in some respects, far more detrimental than an elevated railway in a crowded city, partly because the sights and sounds from cars of elevated railways in large cities are mingled with many other disturbing sights and sounds which make them less noticed by horses than would otherwise happen, and partly because the horses used in crowded parts of cities are accustomed to a great variety of disturbing conditions, while horses in suburban and rural regions are not familiar with such terrifying disturbances. By St. 1894, p. 764, c. 548, § 8, the elevated railway in Boston was declared to impose an additional servitude upon land taken for public streets, and a provision was made for the payment of damages accordingly. Baker v. Boston Elevated Ry. Co., 183 Mass. 178, 66 N.E. 711.
The law in this commonwealth is exceedingly liberal to the public, in its interpretation of the provisions under which streets and highways are laid out. The public easement acquired under such statutes 'is held to include every kind of travel and communication for the movement or transportation of persons or property which is reasonable and proper in the use of a public street.' New England Telephone & Telegraph Co. v. Boston Terminal Co., 182 Mass. 397-399, 65 N.E. 835. The doctrine has been stated and elaborated in many other cases. White v. Blanchard Brothers Granite Co., 178 Mass. 363, 59 N.E. 1025; Eustis v. Milton Street Ry. Co., 183 Mass. 586, 67 N.E....
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