Selectmen of Town of Brookline v. Boston & A.R. Co.

• Decision Date: 02 July 1920
• Citation: 128 N.E. 97,236 Mass. 260
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: SELECTMEN OF TOWN OF BROOKLINE v. BOSTON & A. R. CO. et al. (two cases).

236 Mass. 260

128 N.E. 97

SELECTMEN OF TOWN OF BROOKLINE

v.BOSTON & A. R. CO. et al. (two cases).

Supreme Judicial Court of Massachusetts, Norfolk.

July 2, 1920.

Report from Superior Court, Norfolk County; Patrick M. Keating, Judge.

Two separate proceedings by the Selectmen of the Town of Brookline against the Boston & Albany Railroad and another to determine liability for the cost of reconstruction of highway bridges over the railroad tracks, in which the respondents applied for a jury to revise the reports and awards of the two special commissions. Special findings by jury assessing a part of the cost of each bridge against the railroads, and cases reported on respondents' exceptions. Exceptions overruled, except those relating to payment of interest, which are sustained.William D. Turner and George Hoague, both of Boston, for petitioners.

Ralph A. Stewart and Edwin H. Abbot, Jr., both of Boston, for respondents.

JENNEY, J.

These cases, as stated in the report under which they are before the court, are--

‘two applications [under St. 1906, c. 463, § 27] of the Boston & Albany Railroad Company and the New York Central Railroad Company, lessee [hereinafter referred to as the railroad], for a jury to revise the reports and awards of two special commissions, both appointed * * * October [236 Mass. 265]17, 1916, one to hear and determine which party should pay charges and expenses incident to the execution of certain work ordered by the county commissioners of Norfolk county under date of February 1, 1916, upon the bridge at Cypress street in Brookline over the Boston & Albany Railroad; and the other to hear and determine which party should pay the charges and expenses incident to the execution of certain work ordered by the county commissioners of said county under date of February 1, 1916, upon the bridge at Aspinwall avenue in Brookline over the Boston & Albany Railroad.’

Cypress street, where it crossed the railroad, was a public way prior to 1851. In that year the Charles River Branch Railroad, ‘a corporation which was afterwards acquired by the Boston & Albany Railroad Company,’ was granted a location which crossed said street at grade, and the railroad was constructed thereover. July 3, 1888, said commissioners in substance adjudged that it was necessary for the security and convenience of the public to erect a bridge over said railroad, which then was a part of the system owned and operated by the Boston & Albany Railroad Company, at the point where said street crossed it at grade, and the details of the construction of the bridge and its approaches were determined. September 12, 1888, special commissioners were appointed under the provisions of Pub. Sts. c. 112, §§ 131, 132, and acts in amendment thereof, who, after hearing, directed that the railroad should build the bridge, abutments and superstructure and should bear the cost of that work; that the town of Brookline should do all other work required by the order; and that the company should pay to the town a specified sum of money and a part of the cost of certain parts of the work. The commissioners further reported that the town should bear ‘all future charges for keeping said bridge and the approaches thereto in repair.’ The town of Brookline applied for a trial by jury, and, as a result of the trial, the answers to the issues submitted confirmed in effect the report of the commissioners, except that the amount to be paid to the town by the railroad was increased. July 2, 1890, a decree was entered in accordance with the report of the commissioners, as modified by the findings of the jury. This decree provided:

‘Said town shall bear all future charges for keeping said bridge and the approaches thereto in repair.’

In the year 1913, the officers of the railroad became satisfied that the bridge needed repairs and reported that fact to the officers of the town.

The Charles River Branch Railroad Company (whose successor is the Boston & Albany Railroad Company) acquired its location known as the Newton Highlands Branch, and prior to 1855 operated trains thereover. In 1855 the highway now called Aspinwall Avenue had not been laid out or constructed to or near the railroad location. In 1857 a petition was filed with said commissioners requesting that a new highway be constructed with a crossing over said railroad location, and on January 11, 1857, the commissioners adjudged and determined that public convenience and necessity required that a highway be laid out with an ‘overpass bridge at the railroad crossing.’ Thereafter they located said road and bridge, and directed that a bridge be constructed over said railroad ‘of a width and space specified,’ and that the town of Brookline should construct the same at its sole expense. This decree was complied with. In 1888 the selectmen petitioned the county commissioners asking them to order that this bridge be widened to the full width of said avenue; and, after hearing, the commissioners in substance ordered, that it was necessary for the security and convenience of the public that alterations be made in the bridge, and prescribed in detail its width and the construction. April 7, 1893, the Boston & Albany Railroad Company granted to the town an easement permitting the construction and maintenance of abutments and wing walls of said bridge upon certain land owned by it. March 29, 1893, the selectmen of the town in a petition to the superior court, recited the entry of the decree of the county commissioners and prayed for the appointment of a special commission. This commission was duly appointed. Said commissioners on March 31, 1893, ordered ‘in conformity with the agreement of the parties' that the alterations in the bridge and the approaches thereto should be made by the town; that the county of Norfolk should pay a part of the expenses; and that ‘the town of Brookline * * * pay the rest and * * * keep the said bridge and the approaches thereto in repair, the Boston & Albany Railroad Company having waived all claims for land, grade and other damages to arise from said alterations.’ April 18, 1893, by consent of all parties a decree was entered in the superior court confirming this award. The bridge as thus altered was kept in repair thereafter by the town, and was used by the public for many years. In 1914 the railroad officials reported to the officers of the town that the bridge was not in good repair.

The selectmen of Brookline, in 1915, petitioned the county commissioners, reciting that it was no longer practicable to make these bridges safe by repairs, and that it was necessary to rebuild the same for the security and convenience of the public, and requested them, if they should determine that such rebuilding was necessary, to prescribe the manner and limits thereof. After hearing, the commissioners adjudged in each proceeding ‘that it [was] necessary for the security and convenience of the public that the highway bridge * * * be rebuilt,’ and prescribed the manner and limits of the work. The new bridges provided by the decrees were the same width as the old bridges, but it was required that the iron and steel superstructure be incased in reinforced concrete, the roadway, which in the old bridge was of hard pine underfloor and a spruce plank wearing surface, be paved with wood blocks, and that sidewalks be constructed of concrete slabs with heavy granolithic surfaces with chambers for gas and water pipes.

Thereafter petitions were filed in the superior court for the appointment of special commissioners. to determine who should carry the decisions into effect, and who should pay the charges and expenses incurred by reason thereof, the future charges for keeping the bridge in repair, and the costs of the application and of the hearings. Commissioners having been appointed, they reported to that court that the town of Brookline had properly carried into effect, by agreement of all parties, the orders of the county commissioners, and had paid the charges and expenses of rebuilding the superstructure of the bridges. The bridges as now constructed, being of reinforced concrete, are stronger than those which they replaced, will carry heavier loads, and will have a very much longer life. The commissioners determined that the railroad and the town of Brookline should pay all charges and expense of rebuilding the superstructure of the Cypress street bridge; and that, of the amount paid by the town, the railroad should pay $4,000 with interest at the rate of 3 per cent. per annum from March 28, 1916, and the town the remainder. The commissioners determined that the expense of reconstruction of the Aspinwall avenue bridge should be borne by the railroad and by the town. They apportioned$750 of the expense thereof upon the former, with interest at the rate of 3 per cent. per annum from March 28, 1916, and substantially $7,421.87, the balance of charges and expenses of rebuilding the superstructure, upon the town. They further reported, concerning the Cypress street bridge, that the town should ‘pay the future charges for keeping said bridge and approaches thereto in repair, intending herein to include the expense of keeping the surface of the roadway in condition suitable for travel, together with the expense of keeping the new superstructure in repair, and * * * apportioned said charges upon the inhabitants of the town of Brookline, not intending, however, to impose upon them the entire cost of rebuilding said structure should a rebuilding thereof become necessary through its destruction by consent of the authorities and parties hereto or by some other act or by lapse of time,’ and concerning the Aspinwall avenue bridge, that said town should ‘pay the future charges for keeping said bridge and the approaches thereto in repair intending * * * to include the expense of keeping the surface of the roadway in condition suitable for travel, together with the expense of keeping the new...