Lorain Steel Co. v. Norfolk & B. St. Ry. Co.
| Decision Date | 03 March 1905 |
| Parties | LORAIN STEEL CO. v. NORFOLK & B. ST. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jas A. Stiles, for plaintiff.
Gaston Snow & Saltonstall, for defendant.
Whatever title the plaintiff has to the property described in the declaration is derived under a written agreement made by the Johnson Company with the Norfolk Southern Street Railway Company to furnish and equip the street railway now owned and operated by the defendant with rails, trucks, motors, and motor equipments. It was expressly provided by the contract that the materials made or supplied for this purpose should remain the property of the vendor until payment therefor had been fully made. This condition has not been complied with and, unless its performance has been waived, or the defendant has acquired a paramount title, the vendor, and hence the plaintiff, to whose rights it has succeeded, could maintain replevin to recover the rails and other articles delivered or tort in the nature of trover for their conversion, even if the mortgagee, under whom the defendant claims, is found to be a purchaser for value, and without notice. Coggill v. Hartford & New Haven Railroad, 3 Gray, 545, 547; Deshon v. Bigelow, 8 Gray, 159; Amour v. Pecker, 123 Mass. 143, 145; Wentworth v. Woods Machine Co., 163 Mass. 28, 39 N.E. 414; Cottrell & Sons Co. v. Carter Rice & Co., 173 Mass. 155, 159, 53 N.E. 375, and cases cited; Oliver Ditson Co. v. Bates, 181 Mass. 455, 63 N.E. 908, 57 L. R. A. 289, 92 Am. St. Rep. 424. When the contract was entered into, and the rails delivered, it was understood that they were to be used in the construction of a track for the railway company, and an assent to such use by the vendor is implied from the very nature of the undertaking. The track was built in the ordinary way by spiking the rails to sleepers laid within the location in the public ways granted to the company, and the defendant claims that such an annexation to the soil changed them from personalty to realty, and that an action will not lie for their conversion, as the plaintiff concedes that the American Loan & Trust Company, mortgagee in the mortgage under the foreclosure of which the defendant claims its title, was ignorant of the conditional agreement. In support of this contention it relies upon the settled rule that rails affixed in the usual manner to the roadbed of a railroad, if there is no agreement to the contrary, become part of the realty; and where there is such an agreement, while the rails as between the seller and the railroad are personalty, if the roadbed is mortgaged to a mortgagee who has no notice of the agreement, and a foreclosure follows, the purchaser at the sale acquires a good title against the vendor. Hunt v. Bay State Iron Co., 97 Mass. 279; Meagher v. Hayes, 152 Mass. 228, 25 N.E. 105, 23 Am. St. Rep. 819. There is, however, a clear distinction between the nature of a right of way acquired by a railroad and the ordinary grant of a location in the public ways to a street railway. When not obtained by purchase, a railroad corporation lays its rails on land in which a right in the nature of a permanent easement has been taken by the exercise of the delegated power of eminent domain, and thus an interest in real estate is acquired. Barnes v. Boston & Maine R. R., 130 Mass. 388. Within the limits of the layout it has the exclusive use and control of its roadway for all purposes authorized by its charter, whether by a special act of incorporation or under the general laws, subject only to such transitory invasions as may be required by a public emergency. Locks & Canals v. Nashua & Lowell R. R., 104 Mass. 1, 6 Am. Rep. 181; Sweeney v. Boston & Maine R. R., 128 Mass. 5, 6; Peirce v. Boston & Lowell R. R., 141 Mass. 481, 486, 6 N.E. 96. And among the uses to which the location can lawfully be put are not only the construction and maintenance of the roadbed for the running of trains, but also of buildings necessary for carrying on the business of a common carrier as ordinarily conducted. Peirce v. Boston & Maine R. R., supra. The interest in land thus acquired and held takes on all the characteristics of an estate in fee, with the single exception that, where the taking is of an easement alone, when the use ceases the easement is at an end, and for this reason the general rule of the common law that what is annexed to the freehold by the owner becomes a part of the realty and passes by his deed is held applicable to conveyances made by a railroad of its right of way, roadbed, and track. Butler v. Page, 7 Metc. 40, 39 Am. Dec. 757; Hunt v. Bay State Iron Co., supra.
But a street railway gains no easement or freehold interest in the soil, or exclusive control of the highways in which a location is granted to lay tracks and operate the road. The right conferred is to use the way within its location in common with others, and not exclusively for its own benefit. The whole way is as fully open to the lawful use of travelers after the road is built and in operation as before. Middlesex R. R. Co. v. Wakefield, 103 Mass. 261; Atty. Gen. v. Metropolitan Ry., 125 Mass. 515, 517 28 Am. Rep. 264; O'Brien v. Blue Hill St. Ry. Co., 186 Mass. 446, 71 N.E. 951. The use of a public way by a street railway is on the same footing as its use by other quasi public corporations for the laying of gas and water pipes or the erection of poles and wires for the use of telegraph, telephone, and electric light companies--that are all recognized as agencies for the larger accommodation of the public, under whose rights they are allowed to come in and participate in the enjoyment of an easement, payment for which has already been made. N.E. Telephone & Telegraph Co. v. Boston Terminal Co., 182 Mass. 397, 399, 65 N.E. 835, and cases cited. It has consequently been held that gas and water pipes, manholes, conduits, wires and poles used for the transmission of intelligence or supplying light by electricity, laid, placed, or erected and maintained in public streets, are personal property, which the owner may remove; but, if not removed, and the street is appropriated for another public use, which requires their removal, as no interest in land is taken, the owner is not entitled to damages. Com. v. Lowell Gas Light Co., 12 Allen, 75; Natick Gas Light Co. v. Natick, 175 Mass. 246, 248, 56 N.E. 292; Dudley v. Jamaica Pond Aqueduct Corporation, 100 Mass. 183; New England Telephone & Telegraph Co. v. Boston Terminal Co., supra; Boston Electric Light Co. v. Boston Terminal Co., 184 Mass. 566, 69 N.E. 346. The Norfolk Southern Street Railway had no authority to exercise the right of eminent domain; nor could it acquire title by purchase from the municipalities, as they were not authorized to sell or convey such an interest in the public ways; and the grant of a location only conferred a particular right under certain conditions to use a public easement in common with the public. It therefore gained no interest in the soil of the streets through which its track was laid. Attorney General v. Metropolitan Railroad Co., supra. See, also, Springfield v. Springfield Street Railway Co., 182 Mass. 41, 47, 48, 64 N.E. 577. The case of Clemens Electrical Mfg. Co. v. Walton, 173 Mass. 286, 52 N.E. 132, 53 N.E. 820, on which the defendant relies as sustaining a different view, is not an authority in its...
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