185 Mass. 186 | Mass. | 1904
The respondents, acting officially under the Pub. Sts. c. 189, §§ 19-22, laid out a private way, on the application of one McNeil, to give access to his quarry. The
Section 20 of the chapter first mentioned provides that a party desiring to make such improvements “ shall file a petition therefor with the county commissioners ” etc., while § 25 says that when the premises mentioned in § 19 are situated entirely in one town or city, “ the petition may be made to the selectmen or mayor and .aldermen thereof,” etc. The petitioner contends that in the last named section the word “ may ” means “ must.” If the different parts of the statute had all been originally enacted at one time, there would be considerable ground for the petitioner’s contention. But the sections from nineteen to twenty-four of this chapter were first passed as the St. 1855, c. 104, and have subsequently appeared as Gen. Sts. c. 148, §§ 19-24; Pub. Sts. c. 189, §§ 19-24; R. L. c. 195, §§ 17-22. Under the original act jurisdiction was given to the county commissioners alone. By the St. 1857, c. 292, permission was given to commence proceedings before the selectmen or mayor and aldermen when the premises were situated entirely in one town or city, and this provision has since appeared without material change in the Gen. Sts. c. 148, §§ 25-28; Pub. Sts. c. 189, §§ 25-28, and R. L. c. 195, §§ 23-25. The terms of this additional act were plainly permissive and not mandatory, and they leave the original act with no limitation of the powers conferred by it. The subsequent provisions were not intended to change the existing legislation, and the application in the present case might be made to the county commissioners or to the selectmen, at the option of the applicant.
The next question is whether a way can be laid out under this statute over land of a railroad company outside of the location of the line of its road, five rods in width, but within a location for railroad purposes under St. 1895, c. 356 (R. L. c. Ill, §§ 92-96).
The law has long recognized the right of the public to lay out ways across railroads. Gen. Sts. c. 63, § 57. Pub. Sts. c. 112, § 125. R. L. c. Ill, § 130. Boston & Albany Railroad v. Boston, 140 Mass. 87. Under all these statutes the county commissioners have been the tribunal to determine when and how this right of the public should be exercised. The reason for permitting its exercise over lands which are located by the company outside of the line of the railroad for incidental uses, and which are subject to taxation because these uses are not so strictly public as that of the railroad itself, are stronger than the reasons for permitting ways across railroads.
This statute authorizing such improvements has stood without limitation for nearly fifty years. It contains ample provisions for compensation for those whose property is damaged by proceedings under it. We are of opinion that it gives authority to lay out a way over land located for railroad purposes outside of the location of the railroad itself.
Petition dismissed.