Boston & Maine Railroad v. Hunt, 210 Mass. 128

210 Mass. 128 | Mass. | 1911

Braley, J.

The report under which the case is before us is conclusive upon all questions of fact as the evidence has not been transmitted, and by its terms the Massachusetts Central Railroad, to whose rights the plaintiff has succeeded, acquired by eminent domain a location through the meadow or farm owned by the defendant. The right of way, even if defined as a public easement obtained by condemnation of the land, is substantially absolute so long as used for the purposes of a railroad by the corporation, or those succeeding by legislative sanction to its rights. Barnes v. Boston & Maine Railroad, 130 Mass. 388, 389. Lorain Steel Co. v. Norfolk & Bristol Street Railway, 187 Mass. 500, 502, 503. It is because of these characteristics of complete possession and control that damages for the taking are assessed upon the theory, that the occupation will be permanent and practically exclusive. Presbrey v. Old Colony & Newport Railway, 103 Mass. 1, 5.

The defendant’s grantors at the time of the taking were entitled to “ all damages occasioned by laying out and making and maintaining its road.” Gen. Sts. c. 63, § 21. No reservations in their favor were made, and it must have been apparent, that the construction and maintenance of the road would encroach for the `width of the location upon the area which could be flowed. The right of flowage for agricultural purposes, or for the cultivation or nourishment of cranberries, under St. 1866, c. 206, now R. L. c. 196, § 39, or to furnish mill power, having been injuriously affected, the owners could have recovered compensation under the statute, to be assessed in connection with such additional damages as the premises had sustained. Davidson v. Boston & Maine Railroad, 3 Cush. 91. Tucker v. Massachusetts Central Railroad, 118 Mass. 546, 547. Drury v. Midland Railroad, 127 Mass. 571. Fitz v. Nantasket Beach Railroad, 148 Mass. 35. Fales v. Easthampton, 162 Mass. 422.

The company having taken and paid for the location, the clefenclant, who neither by purchase nor by adverse user had gained a prescriptive title on the facts reported, could not lawfully overflow any portion without the plaintiff’s consent. By causing the waters of the brook to be set back to a height sufficient to infringe upon it, he became a trespasser. Cheney v. Barker, 198 Mass. 356. Menut v. Boston & Maine Railroad, 207 Mass. 12. The injury resulting, although found to have been inconsiderable, arose from the exercise of an adverse right persistently asserted before the filing of the bill, and which the defendant now contends he should be permitted to enforce. It is unnecessary in order for the plaintiff to obtain injunctive relief, that the evidence must show that irreparable injury has been caused, or is reasonably to be anticipated. A court of equity will interfere to prevent the continuance of repeated trespasses, where the wrongful acts when viewed separately, may not have materially impaired the use and enjoyment of the property affected. O’Brien v. Murphy, 189 Mass. 353, 357.

The decree ordered was in accordance with what we have said, and protects the plaintiff, but it should not have been entered, as the case had been reported. The defendant’s appeal, however, gives us jurisdiction, and the decree should be affirmed. Hildreth v. Thibodeau, 186 Mass. 83, 84.

Ordered accordingly.