199 Mass. 292 | Mass. | 1908
These are petitions for the assessment of damages alleged to have been caused by the abolition of the grade crossing on Dudley Street in Boston. The cases come here.on report after a demurrer in each had been overruled, and the question is the same in both. They were argued together and we proceed to consider them together.
The McKeon petition, after describing the premises and after referring to the decree of the Superior Court under which the defendants have acted, alleges that the defendants “ have caused and are causing great damage to the petitioner’s property by the erection of retaining walls on Norfolk Avenue in front of and along the side of and in the rear of the plaintiff’s property causing him great and permanent loss in the value of the same and that said defendant companies in pursuance of said order and in doing the work thereunder have caused your plaintiff great damage by the erection of the temporary bridges over said Norfolk Avenue and upon and against your plaintiff’s property over which said bridges said companies have caused to be run during the prosecution of said work a great many trains daily, that the grade of the said roadbed of said railroad has been raised a great height shutting out your plaintiff’s light and air and otherwise impairing the value of his property.” The allegation in the Davis petition is that the defendants “ have caused and are causing your plaintiff great damage to his property aforesaid by the building against his property of a high granite retaining wall, impairing your plaintiff’s right to light and air and reducing the value of your plaintiff’s property by a large amount.”
The defendants contend that the remedy of the plaintiff McKeon, if any, for the erection of temporary bridges upon his property and running trains over the same is in tort; that neither the plaintiff McKeon nor the plaintiff Davis has any remedy at common law for any damages caused by the building by the defendants of retaining walls upon their own premises even though the result is to shut out light and air from the premises of the petitioners, and that neither has any remedy under the statute in regard to the abolition of grade crossings for the reason that in neither case does the petition allege any
It does not appear in either of the petitions when the proceedings for the abolition of the crossing were instituted. But it is said in the briefs for the petitioners that the petition for the abolition of the crossing was filed under R. L. c. Ill, §§ 149-160, inclusive; and this is also stated in substance in the brief of the defendants, and we assume the fact to have been as both parties seem to agree that it was.
R. L. c. Ill, § 153, as amended by St. 1905, c. 408, § 3, and St. 1906, c. 463, Part I. § 37, which was the law in force at the time of the entry of the decree in the Superior Court,
It is plain that, under the recent decisions of this court, the petitioners have suffered special and peculiar damages in the abolition of the crossing, (Whitney v. Commonwealth, 190 Mass. 531. Hyde v. Fall River, 189 Mass. 439. Sheehan v. Fall River, 187 Mass. 356. Sheldon v. Boston & Albany Railroad, 172 Mass. 180. Penney v. Commonwealth, 173 Mass. 507,) and that if that were all that it was necessary to allege in order to entitle them to maintain their petitions, then the demurrers were rightly overruled. But we do not think that it is. As we construe the statute, the defendants were liable only in case there was a taking of land-or of an easement in land by them, or a change or discontinuance of a private way. And it is not alleged in either petition that either one of those things was done by the defendants and that damage to the premises of the petitioners was caused thereby. It is not necessary that land of the petitioners or an easement therein should have been taken. But no case has gone so far as to hold that damages like those sustained in these cases can be recovered where no land or easement in land is taken. Interference with light, air and prospect does not constitute the taking of an easement in the land so interfered with, though it may result in damage to the property interfered with, and is a proper element of damage when land is taken. It should be noted that in Rand v. Boston, 164 Mass. 354, which has since been overruled (Hyde v. Fall River, supra), and in which there was a dissenting opinion, land on the opposite side of the street was taken and also in Hyde v. Fall River, supra.
The erection of temporary bridges on and over the property of the petitioner McKeon and the running of trains over the same was a trespass, not a taking, and the remedy, if any, for
It is stated in the briefs for'the petitioners that land was taken, although it is not so alleged in the petitions. And the petitions can, perhaps, be so amended as to obviate the objections which are now urged to their maintenance. But that is a matter for the Superior Court to consider and pass upon.
The entry will accordingly be demurrers sustained.
Bo ordered.
The decree authorizing the abolition of the grade crossing was entered July 19,1906.