300 Mass. 415 | Mass. | 1938
After a hearing upon the petition of the selectmen of Clinton, the respondent board, on December 14, 1937, ordered the petitioner to construct a new steel and reinforced concrete bridge to carry the highway from West Boylston to Clinton over a part of the railroad called the Y-branch, in the place of the existing wooden bridge built by the petitioner as early as 1904 and maintained by the petitioner until recently, which has now become decayed, unsafe and beyond repair. A single justice of this court reserved for the full court a petition for a writ of certiorari.
When under St. 1895, c. 488, the Wachusett Reservoir
The Metropolitan board was empowered by statute to “raise or alter or discontinue parts of any railroad or public ways, and in case of a railroad shall make such raisings or alterations of the railroad, or construct upon existing or other locations, parts of the railroad to take the place of the parts so discontinued, as, and in such manner as, shall be mutually agreed upon by said water board and the board of directors of the railroad company . . . .” St. 1895, c. 488, § 6. The Metropolitan board had authority to “build in place of the parts of public ways discontinued, as aforesaid, such other reasonable and suitable ways, which shall thereafter be highways, as, and in such manner as, shall be mutually agreed upon by said water board and the county commissioners . . . . ”
On July 17, 1902, the Metropolitan board made a determination in regard to certain railroad crossings, including the one in question. The determination reestablished the grades of the highway at and near the point in question. It included an order for the construction of the wooden bridge in question, “said bridge to be maintained by the railroad corporation having the control for the time being of the railroad beneath said bridge,” which was the petitioner. This determination was in accordance with an agreement between the Metropolitan board and the petitioner. It was approved and agreed to on July 22, 1902, by the then county commissioners. See G. L. (Ter. Ed.) c. 160, § 100. The wooden bridge, which was built by the petitioner, was intended as a temporary bridge, for it was located on newly filled ground that would not permit the
The petitioner contends that it is subject to no duty and that the respondent board was without jurisdiction.
Where a public way and a railroad must cross each other, the expense of constructing the crossing ordinarily falls on the newcomer. If the way is newly built to cross an existing railroad, “all expenses of and incident to constructing and maintaining the way at such crossing shall be borne by the county, city, town or other owner of the same.” But if the railroad is newly built to .cross an existing way, the railroad corporation must “construct, maintain and keep in repair all bridges, with their approaches and abutments, which it is authorized or required to construct over or under a . . . public way.” G. L. (Ter. Ed.) c. 160, § 107. Sawyer v. Northfield, 7 Cush. 490, 497, 498. Titcomb v. Fitchburg Railroad, 12 Allen, 254. Carter v. Boston & Providence Railroad, 139 Mass. 525. Dickinson v. New Haven & Northampton Co. 155 Mass. 16. Nichols v. Boston & Maine Railroad, 174 Mass. 379. See also G. L. (Ter. Ed.) c. 160, §§ 97, 98. “A bridge under a highway, within the meaning of the . . . [(statute], is a bridge for travellers to use as a part of the highway, crossing the railroad over the level thereof.” Whitcher v. Somerville, 138 Mass. 454, 455. A bridge “over” a highway means a bridge upon which the railroad runs above the highway.
G. L. (Ter. Ed.) c. 160, § 106, provides that the selectmen may apply to the county commissioners when a railroad “so crosses a public way as to obstruct it” or a railroad corporation “refuses or neglects to keep a bridge . . . required or necessary at such crossing in proper repair”; and the county commissioners, after notice to the railroad and a hearing, upon finding the fact to exist, “may make a decree prescribing what repairs shall be made by the corporation at the crossing, and the time within which they shall be made.” Boston & Maine Railroad v. County Commissioners of Middlesex, 239 Mass. 127, 136, 137.
We do not think that the duty of the petitioner to con
Petition dismissed.