Old Colony R. Co. v. Tripp

• Decision Date: 01 June 1888
• Citation: Old Colony R. Co. v. Tripp, 147 Mass. 35, 17 N. E. 89 (Mass. 1888)
• Parties: OLD COLONY R. CO v. TRIPP.
• Court: Supreme Judicial Court of Massachusetts

147 Mass. 35

17 N.E. 89

OLD COLONY R. CO v. TRIPP.

Supreme Judicial Court of Massachusetts, Plymouth.

June 1, 1888

COUNSEL

J.M. & T.C. Day and Hosea Kingman, for defendant.

That in common with all citizens of the commonwealth, whose business or avocation is necessarily connected with the business of the plaintiff company, he had the right, at all reasonable and proper times, to go upon the plaintiff's premises when necessary to the transaction of his business unless by so doing he in some way interfered with or obstructed said company in the discharge of its legitimate business, or interfered with the convenience of its patrons.This proposition is based upon the relation declared as existing between the railroads of this commonwealth and the public in Inhabitants of Worcester v. Railroad Corp., 4 Metc. 564;Com. v. Power, 7 Metc. 596;Camblos v. RailroadCo., 9 Phila. 411.In the first case, SHAW, C.J., declares that an incorporated railroad is a "public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community;" and that, though "the real and personal property necessary to the establishment and management of the railroad is vested in the corporation,""it is in trust for the public."In the second case cited the court says: "The opening of depots and platforms for the sale of tickets," etc "amounts in law to a license to all persons, prima facie, to enter the depot."Can it be contended that this "trust" and "license" are in favor only of passengers--or freighters?If so, the result would seem to be that a railroad company may, at its will, practically monopolize the business of transporting both passengers and freight from its stations, or that it may for its own profit sell and dispose of such business.That the doing of such a business by a railroad company would be ultra vires, seeSummit v. State, 9 Amer. & Eng.R.Cas. 302;Camblos v. RailroadCo., 9 Phila. 411; and to permit such a disposal would be contrary to public policy.Assuming that the defendant is within the terms of the implied license on the part of the plaintiff to "all persons,"he contends that the plaintiff had no right to revoke the same, inasmuch as it does not appear that he in any way or degree interfered with the convenience of either passengers or freighters, or in any way whatever interfered with or obstructed the plaintiff company in the discharge of its duties or the exercise of its rights.It (the revocation) is not shown to be either "reasonable or useful."Com. v. Power, ubisupra, 601, 603;Summit v. State, supra.The regulation or order excluding the defendant was without authority.It was not made or authorized by the directors of the plaintiff corporation.The incidental power of a subordinate of the plaintiff to make such a regulation or order extends only to cases in which the same may be necessary in order to protect the comfort and convenience of the public, or to enable the company to discharge its duties or exercise its rights.Com v. Power, ubisupra, 601, 602.The regulation or order excluding the defendant was unreasonable, and against the rights of the public, whether made with or without the authority of the plaintiff.The contract made with the Messrs. Porter for the transportation of passengers to any part of the city of Brockton in no way provided for other passengers leaving the cars at the Brockton station, or for the transportation of their baggage or merchandise.As the report does not find that the defendant, at any time after the notice to him not to come upon the plaintiff's premises, ever came upon them, prepared to carry or carried therefrom either baggage or merchandise for any parties whatever, there was no such violation by him of the order of the plaintiff's agent as to amount to a forcible breaking and entering of the plaintiff's close, for which damages are alone claimed.Plaintiff does not claim that the acts of the defendant either obstructed it in the discharge of its duties, or annoyed the traveling public, or tended to do either.It does not appear by the report that the order to the defendant not to come upon the plaintiff's premises was given to him until after December 20, 1886; and plaintiff's declaration alleges trespass only between August 1 and December 20, 1886.

J.H. Benton, Jr., and C.W. Sumner, for plaintiff.

A person cannot go on another's land without his permission, express or implied.He commits a trespass by so doing, and an action will lie whether the land be inclosed or not, and although no actual injury be done.Merest v. Harvey, 5 Taunt. 442;Dougherty v. Stepp, 1 Dev. & B. 371;Pierce v. Hosmer,66 Barb. 345;Brown v. Perkins, 1 Allen, 89.The law entitles every one to recovery against every willful and intentional intruder.Sears v. Lyons, 2 Starkie, 318;Rogers v. Spence,13 Mees. & W. 571;Viall v. Carpenter,16 Gray, 285.Every proprietor of lands or buildings has the right to control them, and may even expel by force other persons after ordering them to remove.Com. v. Clark, 2 Metc. 25;Com. v. Power, 7 Metc. 598.The plaintiff company has the same right as an individual to the exclusive control of its premises, and may remove all persons therefrom who seek to remain against its will, with this exception only: that those who come there to go upon its trains, or to have their goods transported thereon, have a right to enter and remain on its premises so far as may be necessary to secure their rights of transportation, subject to such reasonable regulations for such use as the railroad company may impose.The defendant, Tripp, at the time of the alleged trespass, was upon the premises of the company without any intention to take any of its trains, or deliver any goods for transportation, but with the express intent to further his own private business by soliciting of passengers, upon their arrival at the station, baggage to be carried by him.Under such circumstances, he had no right to remain against the will of the plaintiff, and in so doing he was a willful trespasser.Barker v. Railway Co.,18 C.B. 46;Foulger v. Steadman, L.R.8 Q.B. 65;Gillis v. Railroad Co.,59 Pa.St. 129;Harris v. Stevens,31 Vt. 79;Railway Co. v. Bingham,29 Ohio St. 364;Landrigan v. State,31 Ark. 50;Com. v. Power, 7 Metc. 598;Hall v. Power,12 Metc. 482.If the defendant could claim that a prior use by him of the premises of the plaintiff, with its assent and knowledge, for the purpose of soliciting baggage for his private business and advantage, conferred upon him a license to enter thereon, such license was in its nature revocable, and, at the time of the alleged trespass, had been revoked by the action of the plaintiff, and the notice given to the defendant.Wood v. Leadbitter,13 Mees. & W. 838;Wingar v. Tift,24 Ga. 179;Hetfield v. Railroad Co.,29 N.J.Law, 571;Burton v. Scherpf, 1 Allen, 135.Regulations are made by railroad companies with reference to their public duties in transportation of passengers and freights, and the reasonableness of them is always a question of law where the facts are not in dispute; but the prohibition of the defendant from plaintiff's premises, whenever coming upon the same for the transactions of his private business, is not a regulation as to any duties it owes the defendant, but is the exercise of a legal right.41 Amer.Dec. 472, notes to Com. v. Power.Common carriers may even refuse to receive passengers, and eject them from their conveyances or stations, whenever their conduct is such as to annoy or endanger the safety of others, or to injuriously affect their own business interests.Jencks v. Coleman, 2 Sum. 221.If it be held that this was a regulation made by the plaintiff company, then it was a reasonable regulation, properly made; and, after notice to the defendant, Tripp, for its violation, it had a right to expel him from its premises whenever he, said Tripp, came thereon to solicit baggage, or so long as it might reasonably apprehend that he was there for that purpose.41 Amer.Dec. 472, notes to Com. v. Power, 7 Metc. 598;Howell v. Jackson, 6 Car. & P. 723; Story, Bailm.476; Chit.Cont. (5th Amer.Ed.) 478.The defendant in this case was a willful trespasser, and the plaintiff might either eject him by force, or sue him for damages for thus invading their rights of property.The verdict directed by the superior court shall be affirmed.Com. v. Power, 7 Metc. 598.

OPINION

W. ALLEN, J.

Whatever implied license the defendant may have had to enter the plaintiff's close had been revoked by the regulations made by the plaintiff for the management of its business, and the use of its property in its business.The defendant entered under a claim of right, and can justify his entry only by showing a right superior to that of the plaintiff.The plaintiff has all the rights of an owner in possession except such as are inconsistent with the public use for which it holds its franchise; that is, with its duties as a common carrier of persons and merchandise.As concerns the case at bar, the plaintiff is obliged to be a common carrier of passengers.It is its duty to furnish reasonable facilities and accommodations for the use of all persons who seek for transportation over its road.It provided its depot for the use of persons who were transported on its cars to or from the station, and holds it for that use, and it has no right to exclude from it persons seeking access to it for the use for which it was intended and is held.It can subject the use to rules and regulations; but by statute, if not by common law, the regulations must be such as to secure reasonable and equal use of the premises to all having such right to use them.SeePub.St. c. 112, § 188, Railroad Co. v. Gage,12 Gray,...