Hazen v. Boston & Maine Railroad
68 Mass. 574
Mass.
1854
Check Treatment
Thomas, J.

This is an action of trespass quare clcmsum, and comes before us upon a report of the facts, made, with the consent of parties, by the presiding judge.

The plaintiff proved his title to the land described in the declaration. It was agreed that the defendants had, before the date of the writ, constructed a railroad across it. Such construction constituted the alleged trespass. The defendants justify their entry upon and use of the plaintiff’s land under their charter and the laws of the Commonwealth, regulating the location and construction of railroads, and the taking or appropriation of the land of private persons for the purpose.

Of the many questions which have been argued, it is necessary to decide but two; for the decision of these settles the controversy between the parties: 1. Is the land of the plaintiff, on which the defendants have constructed their railroad, included in or covered by the written location filed by the defendants ? 2. If not, may the defendants resort to extrinsic evidence to show what was the land intended to be taken; or is the location, when filed, the sole and conclusive evidence of the land taken or condemned to the servitude ?

*5791. The first is a question of fact. The burden of proof is clearly upon the defendants. The plaintiff having proved his title, the entry by the defendants upon his land, and the construction of their railroad upon it, the defendants must justify by showing that this land is covered by the authorized location of their road. This the defendants fail to do. That such is the fact is substantially conceded in the report. Eminent and skilful engineers were examined, at the argument of the cause, as to the location and plan; and it is quite clear, wherever might be the burden of proof, that the locus in quo is not within the filed location. That is, applying the written local ion to the premises, as you would a deed or levy, the land upor which the defendants’ road is constructed would not be included within or covered by it; and the difficulty, it seems to ns, is not so much that the line of the location may not be traced; as that, when traced, it is shown to pass outside of the locus.

In determining this question, it is doubtless competent to refer to the plan or map, filed with the location and constituting part of the description, as you would to a map or plan, recorded with a deed, or referred to in it; but you cannot vary or modify the written location by such plan. You may explain, but you cannot control it. But the plan or map of the defendants furnishes no substantial aid in the construction of the written location ; and neither by the written location, nor by the plan, nor by both taken together, do the defendants show that the land of the plaintiff, on which their railroad has been constructed, is within the location filed. On the other hand, the result of the evidence before us is that the road is actually constructed upon land outside of the filed location.

2. The other question is one of law. May the defendants resort to extrinsic evidence to show that the land in controversy was intended to be taken, or was in fact taken ?

In cases where the landowner has received his damages for the road as actually constructed, he may be estopped to deny the right of the corporation to use the land in fact taken and used. But that is not the present case.

The Rev. Sts. c. 39, § 75, provide that<£ every railroad corpora*580tion shall, in all cases, file the location of their road within one year, with the commissioners of each county through which the same passes, defining the courses, distances and boundaries of such portion thereof as lies within each county respectively.” The necessity for such a provision, and the object and purpose of it, are very plain. The right acquired by the corporation, though technically an easement, yet requires for its enjoyment a use of the land, permanent in its nature, and practically exclusive. The filing of the location is the act of taking the land. Charlestown Branch Railroad v. County Commissioners, 7 Met. 78. The location, when so filed, constitutes the written, permanent, record evidence of the land taken. It sets off by metes and bounds the land subjected to the servitude. It is conclusive upon the corporation and the landowner. It is the evidence, the only permanent evidence, of what the one has been permitted to take, and the other compelled to relinquish. Without it, the rights of either would be left in uncertainty, not only not ascertained, but not capable of being ascertained.' The construction of the road-bed would mark but a part of the land taken. Whether the remainder of the five rods, if the road was laid out of that width, was on the one or the other side of the track, or equally on both, would not be known. Foreseeing the value and importance of this record, the law requires that it shall have the substantial certainty and precision of a deed—that it shall define the courses and distances and boundaries of the road laid. The failure to file within the time prescribed by law renders void the charter.

We are of opinion, therefore, that the defendants have failed in their justification’; because the land of the plaintiff actually taken, and upon which the road of the defendants has been built, does not conform substantially to the description in the location filed, and is not covered by it. The road being built by the defendants upon land of the plaintiff, not included within their location, and over which they had no control, they are liable in trespass.

This view would not deprive the corporation of the right, subject to the restriction of furnishing security to landowners, con*581fcained in §§ 60, 61, of Rev. Sts. c. 39, from entering upon the land and constructing their road before the time for the filing of their location had expired; but they must see to it that the location, when filed, covers the land actually taken. Otherwise, the record would ccnJudvely shew that the road was built upon land which the law had not condemned to that servitude, and to the use of which the defendants had no right.

So, though an entry upon the land for the purposes of survey may be justified under the charter, and trespass would not lie for such entry, yet possession for the purpose of constructing their road, or for running trains upon it, is not a continuance of such entry, but alio intuitu, and for a distinct purpose, and only to be justified by showing it was done on land taken under the charter and laws of the Commonwealth, of which taking th filed location furnishes the only and conclusive evidence.

Judgment for the 'plaintiff.