184 Mass. 586 | Mass. | 1904
These three eases present the same questions, and they may be considered together in one opinion. They are bills in equity to obtain an injunction against the defendants as members of the Boston transit commission, to prevent the construction of a subway and tunnel from Scollay Square to East Boston through public streets in front of the premises of the several plaintiffs, without a formal taking of land in the streets. The plaintiffs contend that the construction of the tunnel or subway, without a formal taking of land in the streets, is unauthorized and illegal, because it would impose an additional servitude upon lands previously taken for streets and in that way would deprive the plaintiffs of property as owners of the fee in parts of these streets, and because the St. 1894, c. 548, § 31, provides for the taking of property “held under or by title derived under eminent domain, or otherwise.” They also say that their position is established and their contention confirmed by the provisions of the St. 1902, c. 534, § 19, that “ The" city shall have, hold and enjoy in its private or proprietary capacity, for its own property, the existing subway, the East Boston tunnel, the Cambridge Street subway and the tunnel and subway built under this act,” etc.
The question whether the construction of the tunnel will create an additional servitude upon the plaintiffs’ lands in the public streets lies at the foundation of these cases, and should be answered at the outset. The rules and principles applicable to such questions have often been considered by this court. Attorney Greneral v. Metropolitan Railroad, 125 Mass. 515. Pierce v. Drew, 136 Mass. 75. Lincoln v. Commonwealth, 164 Mass. 1. Howe v. West End Street Railway, 167 Mass. 46. White v. Blanchard Brothers Granite Co. 178 Mass. 363. New England Telephone & Telegraph Co. v. Boston Terminal Co. 182 Mass. 397. Eustis v. Milton Street Railway, 183 Mass. 586. In the last two cases the doctrine was stated broadly, in accordance with previous decisions, that this public easement includes “ every kind of travel and communication for the movement or transportation of persons or property which is reasonable and
The Legislature, the guardian of public interests and of private rights, has determined that the space below the surface of certain streets in Boston is needed for travel. The question is whether action under the statutes involves an acquisition of a new right as against the landowner, or only an appropriation and regulation of existing rights. It hardly can be contended that this is an unreasonable mode of using the streets in reference either to travellers or abutters. If it is not an unreasonable mode of
In the present case the travel which is being provided for is from place to place within the city. There are stopping-places on the subway at convenient points. In that respect it is different from a tunnel designed only or chiefly for travel for long distances. The new method is a substitution in part of a subterranean use of the streets for a use of their surface for the same general purpose. It is impracticable to have direct communication between the premises of abutters and the cars in the tunnel, but by going a short distance access to them may be had from any place. We are of opinion that this use of the streets is within the purposes for which the lands were taken and that no additional servitude is created by it.
The cases bearing upon this subject which have been decided in other courts differ so much from this in their facts and in the legislation to which they relate that they are not very important. See Ramsden v. Manchester, South Junction & Altrincham Railway, 1 Exch. 723 ; In re New York District Railway, 107 N. Y. 42, 52; Hodgkinson v. Long Island Railroad, 4 Edw. Ch. 411 ; Adams v. Saratoga & Washington Railroad, 11 Barb. 414; Chicago v. Rumsey, 87 Ill. 348 ; Summerfield v. Chicago, 197 Ill. 270, 282; Baltimore & Potomac Railroad v. Reaney, 42 Md. 117.
The authority to take lands, conferred upon the defendants by the St. 1894, c. 548, § 31, although it includes land taken and held under the right of eminent domain, does not imply that there is no right to use the public ways without such taking. Indeed, the first part of the section gives the right to use these ways before it refers to the subject of taking. It then goes on to authorize the taking of private property, and closes by giving a broad general authority.
The statute gives damages to all persons injured in their property by the acts of the commission, but the question whether these plaintiffs are entitled to damages under this provision is not before us.
Bills dismissed.