202 Mass. 115 | Mass. | 1909
This is a petition for the assessment of damages under the St. of 1908, c. 163,
This trestle was to carry the street railway over the tracks of the Boston and Albany Railroad. The petitioner owned two houses opposite the trestle, one occupied by himself and the other by a tenant. The trestle was a structure of timber, very similar to a coal trestle used for coal cars. It was constructed in the middle of the street, and it started east of the plaintiffs property at the grade of the street, and rose gradually as it went west until it got to a height above the railroad of twenty feet to the top of a board fence, built along on either side of it to a height four feet above the ties on which the rails were laid. In front of the plaintiff’s house it was twelve feet to the top of the board fence. Although there was a plank on top upon which one could walk, the public were prohibited from walking on it. There were bents, or upright posts, on which the stringers were laid, and there were braces placed in such a way that no vehicles could pass through. It was fifteen feet wide at the base and twelve feet at the top. There were two tracks over it, but they were placed in such a way that the outward and inward bound cars, which used different tracks, could not pass on the trestle at the same time while going in opposite
Proceedings were begun in 1900 for a separation of the grades of the Boston and Albany Railroad and the street, and the work whereby this grade crossing was abolished was completed in August, 1906. The trestle was taken down and removed in July, 1908.
The effect of the St. 1903, c. 163, as it was construed in Lentell v. Boston Worcester Street Railway, 187 Mass. 445, was to leave the railway company liable to pay damages for the con
The trestle, in its effect upon the street at this point, and upon the plaintiff’s houses, was very similar to the elevated railways which have been built in large cities in recent years. In its effect upon the use of the street by travellers with horses, it was, in some respects, far more detrimental than an elevated railway in a crowded city, partly because the sights and sounds from cars of elevated railways in large cities are mingled with many other disturbing sights and sounds which make them less noticed by horses than would otherwise happen, and partly because the horses used in crowded parts of cities are accustomed to a great variety of disturbing conditions, while horses in suburban and rural regions are not familiar with such terrifying disturbances. By the St. 1894, c. 548, § 8, the elevated railway in Boston was declared to impose an additional servitude upon land taken for, public streets, and a provision was made for the payment of damages accordingly. Baker v. Boston Elevated Railway, 183 Mass. 178.
The law in this Commonwealth is exceedingly liberal to the public, in its interpretation of the provisions under which streets and highways are laid out. The public easement acquired under such statutes “ is held to include every kind of travel and communication for the movement or transportation of persons or property which is reasonable and proper in the use of a public street.” New England Telephone & Telegraph Co. v. Boston Terminal Co. 182 Mass. 397, 399. The doctrine has been stated and elaborated in many other cases. White v. Blanchard Brothers Granite Co. 178 Mass. 363. Eustis v. Milton Street Railway, 183 Mass. 586. Howe v. West End Street Railway, 167 Mass. 46. Pierce v. Drew, 136 Mass. 75. But the uses
In the city of New York the streets are held by the government in fee as property, subject to a trust that they shall not be put to a use which is inconsistent with their use as streets, or
Upon the question whether an additional servitude is imposed, courts very generally have recognized a distinction between elevated railways and other uses of streets for travel. Jones v. Erie Wyoming Valley Railroad, 151 Penn. St. 30. Willamette Iron Works v. Oregon Railway, 26 Ore. 224. State v. Superior Court, 26 Wash. 278. Dairy v. Iowa Central Railway, 113 Iowa, 716. Farrar v. Midland Electric Railway, 101 Mo. App. 140. DeGeofroy v. Merchants Bridge Terminal Railway, 179 Mo. 698. Barnett v. Johnson, 2 McCarter, 481.
We are of opinion that there were facts before the judge in the present case, which would warrant a finding that the trestle would have been a private nuisance of a grave character to the petitioner’s estate, if it had not been authorized by the Legislature, and that its maintenance was a use of the street which would have been unreasonable, under the general taking, in the absence of statutory authority to provide for new and peculiar conditions. Upon such a finding, the right to construct and use the trestle would not be included in the easement acquired by the public when the street was laid out, and under the statute before us there would be a taking of the petitioner’s property by right of eminent domain.
The fact that the damage was not permanent does not affect
Judgment on the verdict.
Section 3 of that statute is as follows: “ The construction, maintenance and use of the said trestle shall be deemed not to be an additional easement or servitude. If any person is legally damaged in his property by the construction, maintenance or use of 'the said trestle the damages may be assessed by a jury of the Superior Court upon proceedings conducted as provided with respect to the laying out of ways in the city of Newton. ”
This section was held to be constitutional in a suit in equity between the same parties in an opinion reported in 187 Mass. 445.
Stevens, J.