68 Mass. 54 | Mass. | 1854
We cannot doubt that the obstruction of a highway or town way, in any form, is prima facie a public nuisance; and that the proper redress for the public is to be sought by indictment. Railroad companies are prohibited from making the roads so as to obstruct public ways, except in a particular mode, by the permission of the selectmen. Rev. Sts. c. 39, §§ 66, 67. The only justification relied on in the present case is, that that part of the license or permission of the selectmen, which required a draw in the railroad bridge, to
This presents a new and somewhat difficult question. There is no express limit, provided by statute, to the authority of selectmen and county commissioners, as to the expedients they may prescribe, to overcome difficulties, and reconcile the use of the highway and the railroad with each other. We can imagine cases, where the position of the highway and the railroad towards each other, and the vicinity of waters, rocks and precipices, are so peculiar, that some new expedient must be resorted to, within the scope of invention and experience, to effect this mutual accommodation. In the earlier days of railroads, many expensive and artificial means were applied, to overcome difficulties apparently insuperable, such as inclined planes and stationary engines, and lifts, in the nature of locks on canals, from one level to another.
. In the present case, it appears, from an examination of the localities on the plan, that the railroad, the public road and the river have a relation to each other, quite peculiar, and all affecting the question of mutual accommodation. The railroad, for a considerable distance, passes near the bank of the river on a level, at a height just sufficient to be above the reach of the water, at its highest stages. If the highway were carried by a bridge over the railroad, the height would be so great and the distance so short, from the top of the bridge to the margin of the river, that it would be quite too steep for use, if not absolutely impassable. If earned under the railroad, it would fill with water from the river, and be useless. To carry the railroad over the way would require an embankment beginning at a great distance each side, to get the required slope and height, and this would be attended with very great expense. We are not, however, prepared to say that a draw in the railroad bridge was necessary, or was the only means which could be suggested in order to secure the use of the road. But it does appear that
Judgment on the verdict.