New York And New England Railroad Company v. City of Boston

• Decision Date: 29 July 1879
• Citation: 127 Mass. 229
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: New York and New England Railroad Company v. City of Boston & another

127 Mass. 229

New York and New England Railroad Company v. City of Boston & another

Supreme Court of Massachusetts

July 29, 1879

[Syllabus Material] [Syllabus Material]

Suffolk. Bill in equity, filed December 11, 1878, against the city of Boston and Charles Harris, its superintendent of streets, to restrain them by injunction from constructing the street, called A Street, in South Boston, at grade, over the tracks of the plaintiff's railroad. The case was heard by Ames, J., and reported for the determination of the full court in substance as follows:

The plaintiff corporation is the legal successor of the Midland Railroad Company, (which was incorporated by the St. of 1850 c. 268, and authorized to build a pile bridge twenty-six feet in width over the South Boston flats,) and owns and operates the road, and is entitled to all the rights and privileges of the latter corporation. By the St. of 1853, c. 311, the location over these flats was changed; and the point of crossing is within the location of the road as authorized and required by the latter statute, and is shown on the plan printed in the margin. ^[*] This new location was duly filed with the board of aldermen of the city of Boston, on March 31, 1854, and accepted by that board on December 30, 1854, and was and is in all respects the legal location of the Midland Railroad Company and of the plaintiff. The tracks over this location were laid, and the road was in operation and cars running, prior to January 1, 1855, and it has been since that time, and is now, so operated and run.

On April 4, 1854, the Legislature passed an act authorizing the Boston Wharf Company to construct their wharf to the commissioners' line; § 3 of which provides that "the city of Boston shall have the right to lay out such streets, with sewers under the same, as public convenience and necessity may require, on the territory over which the Boston Wharf Company is hereby authorized to construct their wharf; provided, however, that all such streets shall be laid out within one year from the passage of this act." St. 1854, c. 218. The territory comprised in this act was at this time unfilled flats, over which the tide ebbed and flowed, and was crossed by the location and tracks of the plaintiff corporation.

On April 4, 1855, the board of aldermen of the city of Boston passed an order laying out several streets over this territory, one of which, fifty feet wide, is shown on the plan, and is marked B C D E.

On December 17, 1855, the same board passed an order discontinuing this street, except the triangular portion enclosed in dotted lines on the plan; and, on the same day, passed an order laying out A Street from the points G and H on the northeasterly side of Eastern Avenue, and running in the direction of the points marked F and I, and extending in the same direction beyond them. The discontinuance of the street laid out on April 4, 1855, and the laying out of the new street were subject to the proviso that the Boston Wharf Company should release all claim for damages on account of such discontinuance, and should convey to the city the land taken for the new street; and this was done by a deed executed by the Boston Wharf Company on December 26, 1855. On the last-named day, the city made an agreement with the Boston Wharf Company for the filling of A Street.

On May 15, 1873, the St. of 1873, c. 289, took effect. This act ratified and confirmed the formation of the plaintiff corporation, and authorized it to take a large parcel of land and flats, including that shown on the plan, for the purpose of increasing its terminal facilities in Boston, "with the right to construct suitable approaches, for the use of said railroad, from the present location of said road to any property acquired under the above provisions;" subject to the following proviso: "provided that the said railroad company are not hereby authorized to take any part of the land within the limits of A Street as located by the city of Boston, or conveyed to the said city by the Boston Wharf Company, or of the extension of the same to Eastern Avenue; but the said street may be crossed by the tracks of the said railroad company in such places and to such extent as shall not prevent the use of the same for public travel as a highway." This act was accepted by the plaintiff corporation; and, at the time of its passage, A Street had been completed and opened to public travel to a point about one thousand feet southwesterly from where the plaintiff's tracks cross the street. Work on the street from this point was begun in 1878, and early in December of that year the street was graded to the crossing of the plaintiff's road; but up to that time no work had been done on the portion of the street northerly of this crossing.

On December 3, 1877, the board of aldermen established the grade of A Street at sixteen feet above mean low water, which would bring it to the level of the plaintiff's road. On December 10, 1877, the superintendent of streets was instructed by an order of the board of aldermen to grade A Street to the established grade; and on December 9, 1878, the superintendent of streets was directed by an order of the same board to put down planks or timbers between the rails of the plaintiff's road at the crossing of A Street, and to do such work as might be necessary to make A Street where crossed by the plaintiff's road safe and convenient for public travel.

Bill dismissed.

W. G. Russell & J. L. Stackpole, for the plaintiff. 1. At the time the location of the plaintiff's road was accepted by the board of aldermen, in 1854, § 69 of the Rev. Sts. c. 39, was in force, by the terms of which a way could not be laid out over a railroad at grade. See Boston & Maine Railroad v. Mayor, &c. of Lawrence, 2 Allen 107. By the St. of 1857, c. 287, authority was given to county commissioners, upon application and hearing, to permit grade crossings when public necessity requires. This was reenacted in the Gen. Sts. c. 63, § 57 & seq., and in the St. of 1874, c. 372, § 86 & seq. And, by the St. of 1876, c. 73, the consent of the railroad commissioners is also required to make such a crossing legal. No action has been taken by the defendant city under these statutes.

2. The St. of 1854, c. 218, authorizing the defendant city to lay out streets on this territory, did not repeal by implication the Rev. Sts. c. 39, § 69. Goddard v. Boston, 20 Pick. 407. Somerville v. Boston, 120 Mass. 574. The Distilled Spirits, 11 Wall. 356. The attempt of the city to lay out a street over the location of the plaintiff's road was therefore of no effect. Commonwealth v. Haverhill, 7 Allen 523.

3. The street attempted to be laid out in April 1855 was discontinued, and the street laid out in December of that year was a different street, and not an alteration of the old street. It had different termini, a different direction, and occupies different ground. See Commonwealth v Cambridge, 7 Mass. 158; Commonwealth v. Berkshire, 8 Pick. 343; Bliss v. Deerfield, 13 Pick. 102; Goodwin v. Marblehead, 1 Allen 37; Hobart v. Plymouth, 100 Mass. 159. The new street, not being laid out within the year allowed by the St. of 1855, c. 218, and being laid out over navigable waters, was illegally laid out. Commonwealth v. Coombs, 2 Mass. 489. Arundel v. M'Culloch, 10 Mass. 70. Commonwealth v. Charlestown, 1 Pick. 180. Kean v....