Saltonstall v. New York Cent. R. Co.

• Decision Date: 04 March 1921
• Citation: 130 N.E. 185,237 Mass. 391
• Parties: SALTONSTALL et al. v. NEW YORK CENT. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 391

130 N.E. 185

SALTONSTALL et al.

v.NEW YORK CENT. R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 1921.

Report from Superior Court, Suffolk County; Franklin T. Hammond, Judge.

Action of tort by Richard M. Saltonstall and others, as trustees under the will of Eben D. Jordan, against the New York Central Railroad Company. Demurrer to the declaration sustained, and case reported to the full court. Demurrer sustained, and judgment directed for defendant unless plaintiffs amend.Wm. G. Thompson, E. P. Saltonstall, and Geo. E. Mears, all of Boston, for plaintiffs.

Ralph A. Stewart and Charles O. Pengra, both of Boston, for defendant.

RUGG, C. J.

This action is stated in the writ to be in tort. The declaration contains three counts. In each the plaintiffs are alleged to be owners of an apartment hotel in Boston called Trinity Court and of the land on which it is built. The lot is bounded in part on Dartmouth and Stuart streets and Trinity place and on those premises of the Boston & Albany Railroad, on which is situated its Trinity Place Station. The first two counts set out the unnecessarily noisome and negligent operation of locomotives and trains by the defendant by emitting smoke, cinders and vapors in the starting and movement of its locomotives at and in connection with Trinity Place Station, to the direct injury of the Trinity Court property. No cause for demurrer is urged specifically against these counts standing alone. See Matthews v. New York Central Railroad, 231 Mass. 10, 120 N. E. 185.

The third count alleges that by St. 1896, c. 516, § 21, the railroad, to whose duties the construct and open for public use a passenger station for all outward bound trains senger station for all outward bound trains at some location near Dartmouth street, and for that purpose to purchase or take in fee land therefor within a prescribed area; that acting in accordance therewith the railroad did construct the Trinity Place Station on land purchased by private treaty and not taken by eminent domain; that the engines of all outbound passenger trains have been required by statute to stop at that station and in the immediate vicinity of the estate of the plaintiffs; that the plaintiffs' injury, being the same in substance averred in the previous counts, was ‘the necessary, unavoidable and direct result of the starting up again by the defendant’ of the engines of its outward bound passenger trains at Trinity Place Station; that the plaintiffs' injury has been gradual and cumulative and has within the six-year period prior to the date of the writ amounted not to a legal but to a de facto taking of a substantial portion of their Trinity Court property; and that the plaintiffs will continue so to be deprived of their property so long as the defendant continues to obey the mandate of the statute as to the stopping and starting of trains at that station.

The defendant demurred and has assigned numerous causes. One is in substance that count third sets out no legal cause of action in tort, and that the plaintiffs' remedy if any, for the injury there set forth, was by petition for the assessment of damages within the time limited and in accordance with the terms of said chapter 516.

The demurrer admits for the purposes of this decision all facts well pleaded but not the allegations of law in the declaration. Jones v. Dow, 137 Mass. 119, 121.

The words of said chapter 516 in section 21 are that for the purpose of carrying out the mandate of the Legislature respecting the establishment of Trinity Place Station the railroad may ‘purchase or otherwise take in fee’ the necessary land. These words are in substance and effect the equivalent of authority to ‘take by purchase or otherwise in fee.’ Any agreement of parties for purchase effected under the terms of such statutory language must have been made in view of knowledge by all concerned that the right to exercise eminent domain by the railroad was present as an element to be taken into account in the bargaining. The power to seize private property for a public use has been conferred in great variety of words and by some diversity of means. Turner v. Gardner, 216 Mass. 65, 103 N. E. 54. However expressed, the fundamental factor always is the expropriation of private property to the public use. The right to acquire title to such property by negotiation through the instrumentality of agents rather than by resort to a formal instrument of taking and assessment of damages by the courts relates to the means rather than the end. It is a method of fixing as between the owner and the railroad the price at which the transfer shall take place. It does not affect in any degree the use to which the property is to be put when acquired, nor the rights of others arising from such use.

Acquisition of title to such property except for the general public utility, to serve which it was organized, would not be within the corporate power of the railroad. Williams v. Johnson, 208 Mass. 544, 95 N. E. 90. It cannot be thought to have been the purpose of the Legislature in conferring authority upon the railroad both to buy and to seize private property, that the rights of others, flowing from the public use to which the private property must be devoted after title to it has in any way been transferred to the railroad, should be in any measure modified or influenced by the particular form in which the power should be exercised. That would make property rights of private persons dependent upon the accident of the form of doing rather than upon the substance of the thing done. Such a result would be contrary to presumed legislative intendment and is not in accordance with the words of the statute construed in their natural signification. The railroad acquired the land for Trinity Place Station not theretofore owned or needed by it, under express authority of the statute, being clothed therefor by the sovereign power with the right both to exercise eminent domain and to purchase at private sale. It was new property obtained wholly under new authority for the sole purpose of being put to the new railroad uses thereby created and imposed upon the railroad. Under these circumstances it is irrelevant whether the title actually was acquired by a private treaty or by eminent domain.

There is nothing at variance with this conclusion in the statement in the opinion in Howell v. New York, New Haven & Hartford Railroad, 221 Mass. 169, 171, 108 N. E. 934, L. R. A. 1917C, 1131, summarizing McKeon v. New England Railroad, 199 Mass. 292, 85 N. E. 475,20 L. R. A. (N. S.) 1061, to the effect that under the grade crossing abolition act no damages are recoverable by anybody unless land or an easement in land has been taken from somebody by the railroad. Those two decisions were made and opinions written with reference to the provisions of statute authorizing the abolition of grade crossings. St. 1906, c. 463, part 1, §§ 29, 34, 36, 37. Under those sections the taking of land is accomplished solely by decree of the superior court confirming a determination by a commission of three appointed by the court. Those sections expressly authorize acquisition of land by the railroad and by the municipality only by a taking brought about in that way and do not in terms empower either railroad or municipality to purchase land by private negotiation for grade crossing abolition. See, also, said chapter 463, pt. 1, § 41. Those two decisions are not constrictive of the meaning of the words ‘taken,’ ‘take’ or ‘taking’ when used in other context in their comprehensive sense to include acquisition for a public use of private property or of easements therein either by purchase through private negotiation or by seizure through the exercise of eminent domain, when both means of such acquisition of title are authorized by law. The McKeon Case did not lay down the rule that, under the general railroad act or other railroad acts differing in phraseology from that of the grade crossing abolition act, a landowner, no part of whose land was taken, would be deprived of all right to recover damages simply and merely because the railroad, being authorized both to seize land by eminent domain and to buy it by private negotiation, pursued the latter course.

The rule of damage established by said chapter 516 is found in section 23, in these words:

‘The laws of the commonwealth relating to the taking of lands for railroad purposes, and the location and construction of railroads, and the assessment of damages occasioned thereby, shall be applicable to and govern the proceedings in the taking of land hereby authorized to be taken by said terminal company * * *,’ with exceptions and further provisions not here material.

The word ‘taking’ in this section referring by implication to damages arising from the exercise of the power conferred by section 21 as well as by sections 4, 17, and 18, includes acquisition of title by any of the means authorized by the act and is not confined to instances of exercise of eminent domain. The rule of damages of the general railroad law applicable at that time and thus incorporated into said chapter 516 is...