Commonwealth v. Boston & Albany Railroad

150 Mass. 174 | Mass. | 1889

Knowlton, J.

The defendant contends that the adjudication of the county commissioners, and the construction of the new piece of road in accordance with it, operated as a discontinuance of that part of the old road which lies between the old turnpike road and the southerly terminus of the new piece of road. If this contention is correct, the verdict is to be set aside, and judgment is to be entered for the defendant.

The facts agreed, as to what occurred after the change was made, are of little significance, because the road either was or was not discontinued by the executed order of the county commissioners. The subsequent conduct of other persons, showing their opinions as to the legal effect of what had been done, cannot change the construction which should be put upon the proceedings of a judicial tribunal. These facts are competent only so far as they tend to show the nature and condition of the subject matter under consideration at the time the adjudication was made.

It has often been decided that an alteration of a way by the construction of it in a different place, where it will serve all the purposes for which it was designed or used, works a discontinuance of that part of it' not included in the new location, without express words to that effect. Commonwealth v. Westborough, 3 Mass. 406. Commonwealth v. Cambridge, 7 Mass. 158. Bowley v. Walker, 8 Allen, 21. Bliss v. Deerfield, 13 Pick. 102. Johnson v. Wyman, 9 Gray, 186. Hobart v. Plymouth, 100 Mass. 159. If the new piece of road, after diverging from the old road, turned into it again before reaching the turnpike road, the case would be too plain for argument. Does the fact that it continues on and enters the turnpike road at a different point change the result? That such a fact does not necessarily make any difference is assumed in the opinion in Goodwin v. Marblehead, 1 Allen, 37.

In the present case the petition calls the road, of which the old piece of road was a continuation, “the.east road leading from Blandford to Chester Factories.” It describes it as “ hilly and rough at the north end.” The north end terminated in the turnpike road, which is also called in the petition “the road leading from Chester Factories to Huntington.” The petition then prays for an alteration of it, “ commencing at the top of Smith Hill, so called, in Chester, thence running in a northeast direction until it intercepts the road” called in the commissioners’ order the “ old Springfield and Albany turnpike road.” It deals with it as a part of the system of roads which leads from Blandford to Chester Factories, and asks for a change in it, commencing at a point named and running to its terminus, so as to connect with the next road in that system at a different point. The county commissioners granted the prayer of the petition, and there is nothing in the language of the petition, or of the adjudication, to suggest that anything else was contemplated than a substitution of a new piece of road for an old one on the same general line of travel; and we find nothing in the locus to indicate a different intention. So far as appears, there was no landowner on the old piece of road, or in that vicinity, who would be unfavorably affected by the discontinuance of it. Neither the petition nor the report says anything of any part of the public who would be so affected in their travel. If this road was used by any persons in connection with the turnpike road between the former junction and Huntington, the distance to be travelled was slightly increased. The report also indicates that the county commissioners provided for such a possible use by making the new piece of road six rods wide at its junction with the turnpike road, thus cutting off the corker towards Huntington. Against the natural inference from the language of the record, we can see nothing in the case to justify us in finding an intention on the part of the county commissioners that the town should continue to maintain the old road, which was rough and hilly, and that the railroad company should maintain two grade crossings with so short a distance between them. Upon the facts agreed, we are of opinion that the road between the turnpike and the junction of the new road was lawfully discontinued.

Verdict set aside, and judgment for the defendant.