219 Mass. 85 | Mass. | 1914
Before 1891 a public way known as Maple Street crossed at grade in the town of Warren the tracks of the Boston and Albany Railroad, now operated by the plaintiff. In that year the crossing was abolished by proceedings under St. 1890, c. 428, now St. 1906, c. 463, Part I, §§ 29-45, by relocating the street so that at its new location it passed under the tracks of the railroad, which crossed the street by an overhead bridge. The defendant is incorporated to sell electricity for lighting purposes to the public, certain of its wires being carried on poles. In 1894 the defendant was authorized by the proper public board “to erect its poles and maintain its wires” along Maple Street among other highways in Warren. Acting under the authority assumed to be conferred thereby, and without the consent of the plaintiff or its predecessor, the defendant erected poles outside the railroad location and carried over the tracks of the plaintiff where they cross Maple Street, at a height of thirty-three and seven-tenths feet above the rails, four electric wires, two bearing a heavy voltage.
The easement of public travel acquired by the location of a highway includes the transmission of electricity for lighting and power by means of poles and overhead wires or of underground conduits. Commonwealth v. Morrison, 197 Mass. 199, 203. But like any other kind of public travel, it must be exercised within the limits of the highway as located. The ground covered concurrently both by the location of the railroad and that of the highway before the abolition of the crossing at grade was subject to the uses of both kinds of easement, each to be exercised reasonably and with reference to like use by the owner of the other easement. Under those circumstances electric wires might have been carried over the tracks in a proper way without liability to the railroad company. New York, New Haven, & Hartford Railroad v. Cohasset Water Co. 216 Mass. 291.
The situation was changed by the abolition of the crossing at
It is not necessary to decide that under no circumstances would the public have a right to make use of the space above the railroad tracks. That question is not now presented.
It follows that the conduct of the defendant in suspending its wires over the tracks of the plaintiff was not within any authority conferred upon it and was an invasion of the plaintiff's rights.
In accordance with the terms of the report, let the entry be
Judgment for the plaintiff for $1.