Sears v. Crocker

• Decision Date: 07 January 1904
• Citation: 184 Mass. 586,69 N.E. 327
• Parties: SEARS MERCHANTS' NAT. BANK v. CROCKER et al. MERCHANTS' NAT. BANK v. SEME. GRAY et al. MERCHANTS' NAT. BANK v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 586

69 N.E. 327

SEARS MERCHANTS' NAT. BANK v. CROCKER et al. MERCHANTS' NAT. BANK v. SEME. GRAY et al. MERCHANTS' NAT. BANK v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1904

COUNSEL

Lewis S. Dabney, Elihu G. Loomis,

John C. Gray, Edw. W. Hutchins, and C. F. Choate, Jr., for petitioners.

Thos.

M. Babson, for respondents.

OPINION

KNOWLTON C.J.

These three cases present the same questions, and they may be considered together in one opinion. They are bills in equity to obtain an injunction against the defendants, as members of the Boston Transit Commission, to prevent the construction of a subway and tunnel from Scollay Square to East Boston through public streets in front of the premises of the several plaintiffs, without a formal taking of land in the streets. The plaintiffs contend that the construction of the tunnel or subway without a formal taking of land in the streets is unauthorized and illegal, because it would impose an additional servitude upon lands previously taken for streets, and in that way would deprive the plaintiffs of property as owners of the fee in parts of these streets, and because St. 1894, p. 771 , c. 548, § 31, provides for the taking of property 'held under or by title derived under eminent domain or otherwise.' They also say that their position is established and their contention confirmed by the provisions of St. 1902, p. 457, c. 534, § 19, that 'the city shall have, hold and enjoy in its private capacity, for its own property, the existing subway, the East Boston tunnel, the Cambridge street subway, and the tunnel and subway built under this act,' etc. The question whether the construction of the tunnel will create an additional servitude upon the plaintiffs' lands in the public streets lies at the foundation of these cases, and should be answered at the outset. The rules and principles applicable to such questions have often been considered by this court. Attorney General v. Metropolitan Railroad, 125 Mass 515, 28 Am. Rep. 264; Pierce v. Drew, 136 Mass. 75 49 Am. Rep. 7; Lincoln v. Com., 164 Mass. 1, 41 N.E 112; Howe v. West End Street Railway Company, 167 Mass. 46, 44 N.E. 386; White v. Blanchard Brothers Company, 178 Mass. 363, 59 N.E. 1025; New England Telegraph and Telephone Company v. Boston Terminal Company, 182 Mass. 397, 65 N.E. 835; Eustis v. Milton Street Railway Company, 183 Mass. 586, 67 N.E. 663. In the last two cases the doctrine was stated broadly, in accordance with previous decisions, that this public easement includes 'every kind of travel and communication for the movement or transportation of persons or property, which is reasonable and proper in the use of a public street.' In the early settlement of the country and in the location of streets in later times these ways were appropriated to the use of the public for the movement of persons and property from place to place, just as the adjacent lands were appropriated to the use of private owners. The original proprietors of lands in Boston and the original proprietors of lands in New York did not foresee the growth of population and business which has induced landowners to erect buildings 15 or 20 stories high, and to excavate under them basements and cellars and subcellars to be ventilated by the use of engines, to be lighted by electricity, and filled with merchandise. They did not think that the surface of the streets would be insufficient for the use of the people with convenience and comfort in moving to and fro and passing in and out in the transaction of business or the pursuit of pleasure. It is now a fact of common knowledge that the streets of those parts of Boston which are most crowded are entirely inadequate to accommodate the public travel in a reasonably satisfactory way if the surface alone is used. Our system, which leaves to the landowner the use of a street above or below or on the surface, so far as he can use it without interference with the rights of the public, is just and right, but the public rights in these lands are plainly paramount, and they include, as they ought to include, the power to appropriate the streets above or below the surface as well as upon it in any way that is not unreasonable, in reference either to the acts of all who have occasion to travel or to the effect upon the property of abutters. The increase of requirements for the public within the streets of our large cities has probably equaled, if it has not surpassed, the increase of requirements for business along the streets.

The Legislature, the guardian of public interests and of private rights, has determined that the space below the surface of certain streets in Boston is needed for travel. The question is whether action under the statutes involves an acquisition of a new right as against the landowner, or only an appropriation and...