| Mass. | Feb 25, 1913
The single question presented on this record is the extent and validity of the location filed by the Framingham and Lowell Railroad Company in 1872. The statute in force at that time authorized a railroad corporation to "lay out its road not exceeding five rods wide” and to acquire necessary land outside of its location, but such land could not be taken “without the permission of the owner, unless the commissioners on the application of the corporation and after notice to the owner first prescribe the limits within which the same may be taken.” Gen. Sts. c. 63, §§ 17,19. The location, so far as it relates to the plaintiff’s land, was more than five rods in width at all points, and no preliminary determination of limits was made by the county commissioners. The railroad company made its taking first, and secured a determination by the county commissioners afterwards, thus reversing the order set out in the statute. The taking of land from a private owner against his will for a public use under eminent domain is an exercise of one of the highest powers of government. Statutes authorizing the exercise of this right must be strictly complied with. The railroad company undertook to act under the terms of a statute. It failed to comply with that statute in an essential respect. The taking was therefore void. The contention made in behalf of the defendant that, inasmuch as the corporation had authority to take a strip five rods in width, the taking must be considered as a valid taking for that width, is unsound. The taking was not, and did not purport to be, of a strip five rods in width. The location of a railroad, so far as it constitutes the taking of land, must be so definite and specific in its description that it will identify a definite tract of land with that certainty and precision required in a deed. The case is governed by Derby v. Framingham, & Lowell Railroad, 119 Mass. 516" court="Mass." date_filed="1876-02-14" href="https://app.midpage.ai/document/derby-v-framingham--lowell-railroad-6418425?utm_source=webapp" opinion_id="6418425">119 Mass. 516, where the same location was considered. No question arises here as to occupation and acquiescence. Hence Harding v. Biggs, 172 Mass. 590" court="Mass." date_filed="1899-03-02" href="https://app.midpage.ai/document/harding-v-biggs-6426622?utm_source=webapp" opinion_id="6426622">172 Mass. 590, has no relevancy.
In accordance with the terms of the report,
So ordered.
By Morton, J., of two cases tried together before him, the first a petition for an assessment of damages under proceedings for the abolition of a grade crossing at Lincoln Street in Lowell, and the second an action of tort for trespass arising out of the changes in Lincoln Street in consequence of such proceedings.