Providence, F.R. & N. Steamboat Co. v. City of Fall River
| Decision Date | 22 November 1904 |
| Citation | 72 N.E. 338,187 Mass. 45 |
| Parties | PROVIDENCE, F. R. & N. STEAMBOAT CO. KEOGH v. CITY OF FALL RIVER (two cases). KEOGH v. SAME (two cases). BORDEN et al. KEOGH v. SAME (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jennings, Morton & Brayton, for petitioner Providence, F. R. & N. Steamboat Co.
J. W Cummings and E. Higginson, for petitioner John Keogh.
Phillips & Fuller, for petitioners Borden & Remington.
L. E Wood, for petitioner Philanthropic Burial Soc.
H. A Dubuque and F. S. Hall, for defendant.
One of the most important questions in these cases arises in construing St. 1900, p. 471, c. 472, which is an act providing for the abolition of grade crossings in Fall River. In Providence, Fall River & Newport Steamboat Company v. Fall River, 183 Mass. 535, 67 N.E. 647, it was held that this was special legislation, adopting and establishing a particular scheme for a public improvement, which superseded the action of the court, and finally determined the details of the changes to be made in the interest of the general public. The question now before us is whether the statute worked a change of the title to the rights and lands which were appropriated to the public use, or whether it required an additional proceeding as a preliminary to such a change. Upon the theory of the petitioner, the statute not only settled the rights of the public and of property owners as to what was to be done, but it was, in law, the taking of the title to such land as was appropriated, and such private rights as were abridged or destroyed in the public interest, so that the time limiting the bringing of petitions for damages began to run, and the right to receive interest on the amount to be paid accrued, on the passage of the act. It is argued correctly that the rights of the parties were not made subject to the discretion of the mayor and the engineer of the railroad company, which they could exercise by filing or refusing to file the plan and the statement of taking in the registry of deeds. No doubt, the rights of all parties became fixed, so far as the final adoption of the scheme was concerned, as soon as the act was passed, and it then became the duty of the mayor and engineer to file within a reasonable time a plan and the statement of lands and rights taken. This duty they could have been compelled to perform. But the statute contemplated the possibility, if not the desirability, of acquiring a part of all of the lands by purchase, and provided for such purchases. This involved an implication that the title to land purchased would pass by the deed of conveyance, and not by a taking. It was intended, therefore, that there should be an opportunity to attempt an acquisition of title by purchase before there was a taking, and, upon a failure in the attempt, that there should be a taking by the mayor and the engineer, which would work a change of title, and fix the time from which the statute of limitations would begin to run, and the right to receive interest would accrue. While it might be possible to construe the statute in accordance with the petitioner's contention, we think it better to hold that the Legislature did not intend to change the ownership of property by the enactment of the statute, without the subsequent action called for, which was to be a matter of record in the registry of deeds. If this is a correct construction of the statute as to the taking of the lands, the same construction should be given to that part of it which relates to the acquisition of rights in land, the general title to which is left in private owners.
The respondent's contention that interest is to be reckoned from the date of the entry upon the land to make the changes, instead of from the date of the taking, is not well founded. The reason for the provision of Rev. Laws, c. 48, § 13, relied on by the respondent, is not applicable to the assessment under this statute, which statute in itself shows a final determination that the work shall be done, and under which no land of the petitioners was taken, but only certain rights in land. See Hay v. Commonwealth, 183 Mass. 294, 67 N.E. 334.
In regard to the discontinuance of Water street, the claim of the first petitioner, as stated in the report, is 'that although its land did not abut on the discontinued portion of Water street, it had, by open, adverse, and uninterrupted use for more than twenty years, acquired a private right of way over the land of the railroad company from its land to the discontinued portion of Water street, and that therefore the discontinuance of that street was a special damage to it.' The finding of the auditor that the public had acquired a right of way by prescription in...
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