198 Mass. 356 | Mass. | 1908
The first of these cases is a petition for a writ of certiorari to quash an order of the board of gas and electric light commissioners granting to the Boston Consolidated Gas Company, hereinafter called the Boston Company, or simply the company, locations for a pipe line in certain streets, lanes and highways in the city of Chelsea. It has been reserved for the consideration of this court upon the petition and answer and return of the respondents, and certain agreed facts. The Boston Company is the lawful successor in title to the Massachusetts Pipe Line Gas Company, under St. 1903, c. 417, and has all the rights given to that company by St. 1896, c. 537, if all the provisions of those statutes are constitutional, which the petitioners deny.
The Massachusetts Pipe Line Gas Company was incorporated by St. 1896, c. 537 ; and § 5 of that act, as amended by St. 1903, c. 417, § 9, provides as follows: “ If the company shall desire for its pipe lines the right to construct, maintain and operate the same in the streets, lanes and highways of any city or town, it shall petition the aldermen or selectmen therefor, stating
In June, 1907, the Boston Company presented to the board of aldermen of the city of Chelsea a petition for the grant of a location for a proposed pipe line to run through certain named public ways of that city, and also at one point over certain private property, from a point near the boundary line of the city of Everett to a point near the boundary line of the city of Boston. This pipe line was for the purpose of connecting the works of the Gas Company in Everett through the city of Chelsea with those of the East Boston Gas Company. The board of aldermen neglected for more than thirty days to grant this or any other location; and thereupon the company appealed to the board of gas and electric light commissioners, which after a hearing made the order in question, granting the same locations as described in the original petition.
The petitioners in this case contend that the statute already quoted, St. 1896, c. 537, § 5, as amended by St. 1903, c. 417, § 9, is unconstitutional and void, so far at least as it provides for the laying of pipe lines in public ways. Their claim is that the effect of this is to impose an additional servitude upon the lands over which the way is laid out, and that, as there is no provision for compensation to the owners of the fee in such lands, the provisions which impose such an additional servitude are void.
The first question accordingly to be considered is whether the laying of a pipe line for the transmission of gas through and under a public street does impose such an additional servitude, for which the owner of the land must have compensation secured to him. A pipe line is defined in the act as being “ a line of pipes, mains or conduits, with the manholes and other apparatus necessary for the operation thereof, connecting a distributing system, plant for the manufacture of gas, or other pipe line, with any distributing system, plant, pipe line, town or city.”
But the petitioners claim that the pipe line under the statutes in question differs from an ordinary gas main, because it is not intended for the use of the citizens of Chelsea, its presence is not and is not intended to be beneficial to the abutting and adjoining property, and therefore, as they contend, cannot be regarded as fairly incident to the public use of the highways in the community in which they are located. This contention is not inconsistent with some of the language used in our own decisions already referred to, and is supported by cases decided in some other States. Van Brunt v. Flatbush, 128 N. Y. 50. Bloomfield & Rochester Natural Gas-Light Co. v. Calkins, 62 N. Y. 386. Kincaid v. Indianapolis Natural Gas Co. 124 Ind. 577. Sterling's appeal, 111 Penn. St. 35. Ward v. Triple-State Natural Gas Co. 25 Ky. Law Rep. 116. But it is wholly inconsistent with the principles adopted in this Commonwealth. Indeed, the remark of Holmes, J., in Lincoln v. Commonwealth, 164 Mass. 1, 10, as to Van Brunt v. Flatbush, 128 N. Y. 50, may be applied also to the other eases just referred to.
Our roads or public ways are established for the common good and for the use and benefit of all the inhabitants of the Commonwealth. Hodgdon v. Haverhill, 193 Mass. 406, 410. Prince v. Crocker, 166 Mass. 347. The mere fact that the burden of their construction and maintenance has to a large extent been put upon the cities and towns in which they are situated gives to those cities or towns or to their inhabitants no peculiar privileges in such ways. As was said by Allen, J., in the opinion in the case last cited, (166 Mass. 359,) “ the powers which have been given to cities and towns .by the Legislature, by special or by general laws, are in no sense a contract, and do not become vested rights as against the Legislature.” A fortiori, the Legis
It may be added that the Legislature often has exercised this authority, and we are not aware that it ever has been called in question. The original act for the supply of water to the city of Boston provides for the transportation of water from the towns of Framingham, Natick and Way land to Boston by aqueducts or other works, “ to be made and constructed, over or under . . . any street, . . . highway or other way,” without any provision for compensation to the owners of the soil of such highways or any intimation that it was or could be regarded as being an additional servitude imposed upon this land. St. 1846, c. 167, § 2. And this is but a type of many other water acts which might be referred to.
The constitutionality of the statute has not been assailed on any other ground than that above considered. The grant of a location by the express terms of the statute will not affect the right or remedy to recover damages for any injury caused to persons or property by the doings of the company. We are
Nor do we think it material that a part of the location of the proposed pipe line is to run through private land. Of course the grant of a location through the streets will not give any right against the owner of other land; and the Boston Company will have to depend for that upon the license which it has secured from the private owner. But this does not affect the jurisdiction of the aldermen or of the board of gas and electric light commissioners upon appeal. The statute requires as to the terms of the petition merely that it shall state the termini of the pipe line with as much particularity and certainty as practicable, and the streets, etc., in which the company desires to locate it. Looking at the petition in connection with the plans to which it refers, these requirements appear to have been complied with. The aldermen neglected to act upon this petition for more than thirty days, and the board of gas and electric light commissioners acquired upon the company’s appeal seasonably made power to grant to the company “reasonable locations between said termini for such pipe line ” in the streets. St. 1903, c. 417, § 9. The contention that the termini at each side of the private land must be stated as a matter of strict necessity, that it is a jurisdictional averment within the meaning of the statute, is without merit. This conclusion accords with the reasoning of the court in Farnum v. Haverhill & Andover Street Railway, 178 Mass. 300. The company had the right to regard the action of the aldermen taken only after the expiration of the thirty days as a mere nullity, even if they had had the power to impose all the conditions which they attempted to prescribe. The locations given to the company by the board of gas and electric light commissioners are good and valid.
Accordingly the petition for a writ of certiorari must be denied.
The second and third cases are petitions by the Boston Company for writs of mandamus, brought respectively against the aldermen and the superintendent of streets of the city of Chelsea, to have them commanded to issue to it a permit to open and make excavations in Williams Street in that city for the purpose of laying its pipe line therein. Williams Street is
We think it manifest that the company is entitled to such a permit, although by the terms of the section of the statute already quoted its action under the permit must be “ subject to such regulations and restrictions in respect to the manner and time of conducting the work ” as the aldermen shall prescribe. The company is expressly given power to dig up and open the ground, subject to such regulations and restrictions, although it then must put the street into its former condition of repair, to the satisfaction of the local authorities, or be deemed guilty of a nuisance. But these requirements refer to the manner in which the company shall conduct its work and restore the street; they are only conditions subsequent to the vesting of its rights. The company has acquired the absolute right to a permit which was spoken of in French v. Jones, 191 Mass. 522, 531, and which was found not to exist in that case. And see the cases there cited. We think it plain that the petitioner’s right is one which may be enforced by mandamus; and the only question is whether that writ should be directed to the superintendent of streets or to the members- of the board of aldermen.
The ordinances of the city of Chelsea provide that the superintendent of streets may issue such a permit, and that if he refuses to do so the party applying therefor may appeal to the board of aldermen, whose decision shall be final. Ordinances of Chelsea, c. 14, §§ 3, 4. Under these circumstances, we are of opinion that the writ should be issued to the board of aldermen, before which board the company’s appeal is now pending. It is a general principle that mandamus will not be issued where any other remedy is available. Selectmen of Gardner v. Templeton Street Railway, 184 Mass. 294. Perry v. Hull, 180 Mass. 547. There perhaps may be room for doubt whether the company could have maintained a petition for mandamus against the superintendent of streets if it had not availed itself of the remedy given by an appeal to the board of aldermen. But that question is not before us. However that may be, the aldermen by the appeal acquired
Accordingly the petition for a writ of certiorari must be dismissed; a writ of mandamus will be issued on the petition against Cheney and others ; and the petition for a writ of mandamus against Maggi must be dismissed.
8o ordered.