103 Mass. 261 | Mass. | 1869
The franchise conferred by charter, upon corporations of the class to which these plaintiffs belong, is of a carefully limited and qualified nature. They are authorized to use the streets in which their tracks may be laid, in a manner in some respects differing from the ordinary public use, and to some extent modifying the rights of other travellers over those streets. But the use of the streets is granted to them only in common with others. Their franchise does not give them the control of the highways. By the general legislation on the subject, as well as by the terms of the charters, that control is placed, or, more properly speaking, remains, in the municipal authorities of the places in which any part of the street railway is laid. Those municipal officers have the power to control and regulate in a great degree the manner in which the franchise of the railway corporation is to be exercised; and it is made their duty, by means of that control, to protect the rights and promote the convenience of the whole public. It will not be contended that anything contained in the plaintiffs’ charter could in any event be construed as conflicting with the right and duty of any town or city through which their railway may pass to make all such needful repairs or improvements of highways, such widening of culverts or enlargement of bridges, as may from time to time become necessary, even though a serious interruption to the use of the railway might be thereby rendered unavoidable. On such occasions the owners of street railways, like all other parties desirous of using the highway, must submit to a temporary inconvenience for the sake of a permanent advantage.
But the plaintiffs claim that, as to so much of their railway as has been “ located ” on either of the bridges between Boston and Charlestown, this rule does not apply. They contend that, by the terms of their charter, the Commonwealth has parted absolutely and forever with all right and power to interrupt or interfere with the use of the tracks 61 located on those bridges,” even for the purpose of repairing, improving or rebuilding them, or of Widening the draws, whatever new public exigency may arise
But we do not find it necessary, in order to justify the defendants, to resort to the power of the legislature to limit, restrict or annul its own grant. The bridges are the property of the Commonwealth, and they cross a navigable stream which is itself of common right a public highway for the passage of vessels. The sovereign power of the state, that is to say the legislature alone, has the power and is charged with the trust of deciding whether the public good may be better served by causing bridges to be thrown over it than by suffering the natural passage upon its channel to remain free. The legislature is the only tribunal that is to reconcile these conflicting interests. Commonwealth v. Essex Co. 13 Gray, 239. It is under precisely the same obligation to make suitable provision to preserve the navigation of the river, having in view the magnitude and comparative importance of that interest, as it is to provide for the accommodation of public travel by means of bridges. The bridges must necessarily be a great obstruction to navigation, and it is for the legislature, acting as the best good of the public on the whole may require, to prescribe as a condition to projectors who may be authorized to build them, or it may lay down for itself, with regard to bridges belonging to the Commonwealth, such a mode of construction as will sufficiently preserve for vessels the nat
On these grounds, we cannot view the St. of 1869, c. 272, as an encroachment upon the plaintiffs’ charter, or a withdrawal of any portion of their grant, and therefore their
Bill must be dismissed.