159 Mass. 283 | Mass. | 1893
This petition for the assessment of damages caused by the laying out of Front Street in Cambridge across the petitioner’s railroad, on July 20, 1888, under the St. 1882, c. 155, and the St. 1887, c. 282, comes before us upon a report from the Superior Court presenting questions raised by both parties.
1. Considering first the respondent’s contention that the laying out of a highway across an existing railroad is not such an appropriation of individual property to public uses as to require that the owner shall receive a reasonable compensation therefor,
2. The other elements of damages allowed in the verdict may be classed together as the expense of making and maintaining in repair the appliances and structures designed to make the crossing safe and convenient for the traffic of the railroad and of the highway. It is the duty of the petitioner, under the statutes and the order of the Board of Railroad Commissioners, to make and keep in repair the planking, paving, cattle-guards, fences, signboards and posts, and the gates; and there was also evidence tending to show that the gate-house and fences were necessary in fact. Aside from the gates and the gate-house, the expenses of making and maintaining all these structures and appliances were held in Old Colony & Fall River Railroad v. Plymouth, 14 Gray, 155, to be proper elements of damage ; and the expenses of erecting and maintaining the gates, and of the gate-house, if it was a necessary structure, are within the reason of that decision, and also of the rule given in the Massa
The fact that the safety of railroad traffic requires that the railroad company only shall be allowed to do work within the lines of its location has constantly tended to induce legislatures to impose upon railroad companies the duty of maintaining the roadway and all structures and appliances necessary for safety and convenience at such crossings; and in some States the courts have refused to allow the cost of making or maintaining such structures as elements of damages to be recovered by railroad corporations for the crossings of railroads by highways.
A brief historical statement will show that the cases which we are asked to reconsider are, so far as they support the verdict rendered in the present cause, not only consonant with the principles of the common law, but that they are in accord with and give a practical operation to the expressed will of the Legislature. The earlier railroad charters of this Commonwealth required railroad companies to construct and maintain the crossings of existing ways, canals, and navigable waters, and were silent as to the laying out of new ways across railroads. See Sts. 1825, c. 183 ; 1829, cc. 26, 93, 94; 1830, c. 4; 1831, cc. 27, 55, 56, 57, 72; 1832, cc. 49, 97; 1833, cc. 109, 116, 118; 1835, c. 111. All but the first two contained a provision since made part of the general laws, that the Commonwealth might purchase the road upon a ten per cent basis; (see Rev. Sts. c. 39, § 84; Gen. Sts. c. 63, § 138; St. 1874, c. 372, § 180; Pub. Sts. c. 112, § 7;) and the presence of this provision implies that the Legislature will discriminate with some care in imposing upon the corporations burdens which may diminish the value of the reserved rights of the Commonwealth. In the general acts defining the rights and duties of railroad corporations, passed before the adoption of the Revised Statutes, (St. 1833, c. 187, St. 1834, c. 137, and St. 1835, c. 148,) the cost of alterations of
This was the state of the statute law when the rights of the parties to the earlier of the two petitions which were before the court in the case of the Old Colony & Fall River Railroad v. Plymouth, 14 Gray, 155, were fixed by the laying out of a highway across the railroad in January, 1852, the petition for damage having been filed on June 30, 1852. The other highway, for the laying out of which damages were claimed in that case, was laid on December 17, 1855, and before that date two additional general laws had been enacted. The St. 1854, c. 401, authorized county commissioners, upon the petition of any party, for the better security of life or convenience of travel, to alter the location and construction of gates at railroad crossings; and St. 1855, c. 350, required railroad companies, before con
3. The petitioner contends that it is also entitled to have the cost of the operation of the gates, a reasonable compensation for which wa.s found by the jury to be the sum of $14,375, included in its damages, and added to the verdict. In one sense the cost of operating the gates, like that of ringing the bell for the crossing, or of keeping a flagman to give notice of the approach of trains, is an expense arising from and incident to maintaining the way across the railroad; and it might perhaps, without much strain, under the principles of the common law, and under -the language of St. 1857, c. 287, and of its re-enactments, be considered as a fair element of damages. So also might the increased expense of ringing the bell, which was held not to be
4. At the place where Front Street now crosses the petitioner’s railroad, a railroad was first located and constructed by the Union Railroad Company, chartered by St. 1848, c. 296. By the second section of this charter it was provided that the railroad should not pass at the same level any highway or avenue to Boston. But by St. 1853, c. 151, § 1, the city council of the city of Cambridge was given full power to determine in what manner that railroad should be constructed across the streets within the city of Cambridge, whether at grade or otherwise, and what securities should be provided and maintained by the railroad company at such crossings. There was evidence tending to show that, upon a petition of the directors of the Union Railroad Company asking the city council of Cambridge to determine the manner of constructing the railroad across the streets in Cambridge, and what securities should be provided and maintained by the railroad company, agreeably to St. 1853, c. 151, the city council, in the year 1854, permitted the railroad to cross the streets and avenues within the city upon condition that the company should provide, set up, and maintain at its own expense, gates wherever the railroad crossed the streets and avenues
The respondent contends that these circumstances preclude the petitioner from recovering damages for the laying out of Front Street across its railroad. In deciding this question we do not find it necessary to determine the effect of the new location, made under St. 1866, c. 278. In our opinion the whole office of St. 1853, c. 151, § 1, was to rescind the prohibition of St. 1848, c. 296, § 2, against grade crossings, and to give to the city council the power, theretofore in the county commissioners
In the view we have taken of the case, the other questions raised are immaterial, as upon the grounds stated the verdict was justified, and by the terms of the report it is to stand.
Judgment on the verdict.