New York Central & Hudson River Railroad v. County Commissioners, 220 Mass. 569

New York Central & Hudson River Railroad v. County Commissioners

220 Mass. 569 | Mass. | 1915

De Courcy, J.

This is a petition for a writ of certiorari to quash certain proceedings of the board of county commissioners. The Milford branch of the Boston and Albany Railroad, now leased to the New York Central and Hudson River Railroad Company, passes under Highland Street, a public way in the town of Hollis-ton. The selectmen of Holliston brought a petition under R. L. c. Ill, § 132, alleging that the railroad so crossed Highland Street as to narrow and obstruct it. The county commissioners, after due notice and hearing, made certain findings and ordered the petitioner to make specified repairs at the crossing, restoring Highland Street within the railroad location to the width of thirty-three feet.

The petitioner contends that the record of the proceedings of the county commissioners discloses an error of law in their determination that the fence erected on the westerly side of Highland Street is an obstruction of the way. This objection is based mainly on the argument that the fence had stood so long that the commissioners were bound to adopt it as the true westerly boundary of the way by virtue of R. L. c. 53, § 1. The commissioners have found that it was constructed within forty years, namely in 1882. Hence they were not compelled to take it as the true limit, of the way unless “the boundaries thereof are not known and cannot be made certain by the records or by monuments.” They set forth in their answer the following facts, among others, on which they found that the way had been narrowed, namely: That the fence on the easterly side of the street constituted one monument which fixed the easterly boundary; that there were old walls and fences at various points along both lines of Highland Street which indicated that this ancient road always had been two rods wide; that witnesses who had known the road at a time before the railroad was built testified that then there had been no narrowing of the road at the point where the railroad afterwards crossed; that records were presented to them showing a widening and straightening of portions of the road July 17, 1847, the effect of which was to make those portions correspond to the two rods’ width of the rest of the road; and that the railroad location plan, filed January 3, 1848, showed the street to be of uniform width. It does not appear that objection was made to *573the competency of any of the evidence admitted by the commissioners, nor were they asked to certify the evidence upon which they made their findings of fact. As the case stands, their finding that the way is now some twelve feet narrower than the original way is conclusive. Wood v. Quincy, 11 Cush. 487. Commonwealth v. Old Colony & Fall River Railroad, 14 Gray, 93. Tewksbury v. County Commissioners, 117 Mass. 563. Ward v. Aldermen of Newton, 181 Mass. 432. Banaghan v. County Commissioners, 213 Mass. 17.

Such a narrowing of the street, and the maintenance of a fence within its true limits, well may be found to constitute an obstruction of the way, by rendering it inconvenient for travel. And it was exclusively within the province of the commissioners to determine the fact that an obstruction existed, and that it was due to the encroachments of the petitioner. Selectmen of Holliston v. New York Central & Hudson River Railroad, 195 Mass. 299, 305. In this connection it is to be remembered that the obligation not to obstruct a highway, created by R. L. c. 111, § 124 (formerly Rev. Sts. c. 39, § 66), is a continuing one. Even if no sanction or approval of the county commissioners or of the town authorities was required when this crossing was constructed, and its original construction was valid (see St. 1846, c. 271, § 1), nevertheless, if the crossing later became an obstruction, proceedings could be brought to require the making of changes. Dickinson v. New Haven & Northampton Co. 155 Mass. 16. Selectmen of Holliston v. New York Central & Hudson River Railroad, 195 Mass. 299, 304.

It is further contended that the work prescribed by the decree of the county commissioners is an alteration, rather than repairs, and that as matter of law the cost cannot be placed wholly upon the petitioner. This objection apparently was disposed of in the equity suit (195 Mass. 299), wherein the court said at page 306: “The decree being sufficiently full and exact, and the board not having exceeded their jurisdiction, no sufficient reason is shown why specific performance should not be decreed.” And even regardless of the effect of that decision, we cannot say as matter of law that the work at the crossing prescribed in the decree of the county commissioners was an alteration and not “repairs” within the scope of R. L. c. 111, § 132, — the cost of which must be borne by the railroad corporation. The question does not *574involve the distinction between general and specific repairs (see Sullivan v. Fall River, 144 Mass. 579), but between “repairs” under § 132 and an “alteration” under § 134. The term “alteration” is used technically in the legislation upon the subject of highways as indicating a change of location in an intermediate section of an existing way, the establishment of a new section in ■ substitution of a part of the old way. As was said in Bigelow v. Worcester, 169 Mass. 390, 393, “A technical alteration is the substitution of one way for another.” To the same effect see Bliss v. Deerfield, 13 Pick. 102, 106; Gloucester v. County Commissioners, 3 Met. 375, 379; Goodwin v. Marblehead, 1 Allen, 37; Johnson v. Wyman, 9 Gray, 186, 189. Without attempting to lay down a general definition of these words as used in the statute which would be applicable to all cases that may arise, we are of opinion that the work here ordered by the commissioners was not an “alteration.” It called for no change in the course or limits of the original location of Highland 'Street. It prescribed repairs within the highway location that presumably were reasonably adapted to prevent an unnecessary interference with public travel over the crossing. Selectmen of Westborough, petitioner, 169 Mass. 495.

The case of Nichols v. Boston & Maine Railroad, 174 Mass. 379, relied on by the petitioner, involved an order for alterations and not repairs. The petition of the selectmen to the county commissioners set forth a case under Pub. Sts. c. 112, § 129 (now R. L. c. 111, § 134), and asked for relief under that section; and the decree of the commissioners ordered certain “alterations” to be made at the expense of the railroad company.

Petition dismissed.