Old Colony & Fall River Railroad v. Inhabitants of Plymouth

80 Mass. 155 | Mass. | 1859

Shaw, C J.

We believe it has never yet been judicially determined that a railroad corporation who have, in the ordinary course of business, under an act of incorporation, built a road, and have it in full operation, can recover damages for injuries occasioned by laying out other ways, say public highways and town ways, turnpikes and other railroads over it. But the tendency of judicial opinion has been that they may. The language of the Constitution, in which the right to damages occasioned by the exercise of the power of eminent domain is given to all persons, whose property is appropriated to the public use, and not previously acquired (as it lawfully maybe) by purchase of the owner, is strong and decisive in favor of such a claim.

Nor is it in our judgment material whether the property thus taken or appropriated is real estate held in fee, or an easement or lien upon real estate, or personal property. The word “ property ” in the tenth article of the Bill of Rights, which provides that “ whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor,” should have such a liberal construction as to include every valuable interest which can be enjoyed as property and recognized as such.

Nor is it material whether the property is removed from the possession of the owner, or in any respect changes hands ; if it is of such a character and so situated that the exercise of the public use of it, as warranted by the legislature, does in its necessary natural consequences, affect the property, by taking it from the owner, or depriving him of the possession or some beneficial enjoyment of it, then it is “appropriated” to public use by competent authority, and the owner is entitled to compensation.

It is perfectly well settled that property thus taken for a railroad, though it is through the medium of a corporation, who provide the capital, build and conduct the works, and find their reimbursement in tolls, fares and freights given by statute, is taken for a public use. If it could be held that because the power and the property were given to a corporation, it was not for a public object or purpose, but for the benefit of the corporation and their members, like that of a bank or trading company, then it would be an appropriation of private property by the. legislature, under the pretence of the power of eminent domain, and plainly unconstitutional and void.

No ; the vague notion that damages cannot be given in favor of a railroad company whose road is crossed by another public way, we think, is founded on another consideration; that inasmuch as the track of the railroad has been already appropriated to one public use, the authorizing of its further public use is not an appropriation of private property to public use, and therefore affords no claim for damages. There is something plausible in this; but on examination we think it does not warrant the distinction in support of which it is relied on. The theory of railroad corporations is that their compensation in freights and passengers’ fares is computed with reference to the entire cost of construction, including the land appropriated for the purpose. A similar view was taken of the subject by this court in the case of Commonwealth v. Boston & Maine Railroad, 3 Cush. 25, in which the whole plan and scheme upon which the public easement of railroads is acquired in Massachusetts, as set forth in the revised statutes, were stated; and these views, we believe, have been substantially adopted and acted upon since.

The petitioners in the present case were incorporated in the usual form, and were made subject to the duties and obligations and entitled to all the rights and privileges and immunities in the revised statutes.

The court are therefore of opinion that a railroad company whose tracks have been crossed by public ways may sustain and recover damages in the usual modes provided for others sustaining damages by the appropriation of their property.

Here were two distinct cases of so laying out a highway across the petitioners’ road, in each of which the jury found that the railroad company were not entitled to any damages; and, these verdicts having been accepted by the court of common pleas, this court is of opinion that these judgments are erroneous, and they must be set aside and new warrants issued.

As instructions were given provisionally in one or both of the cases by the sheriff as to the nature and quantum of damages to be recovered, and these questions therefore have been brought before the court in the argument; so far as the court have formed opinions, they are here briefly stated, that they may have their proper influence on the new trials.

The petitioners are entitled to recover damages for taking their land for the purposes of a highway, subject however to its use for a railroad; for the expense of erecting and maintaining signs required by law at the crossing; for making and maintaining cattle guards at the crossing, if necessary; and for the expense of flooring the crossing, and keeping the planks in repair. The petitioners are not entitled to recover for the other elements of damage, which were allowed by the sheriff in the second case.

The respondents are not entitled to set off any supposed benefit which may accrue to the petitioners by reason of an increase of travel on the railroad, caused by the construction of the highway. Verdicts set aside.