Selectmen of Hadley

178 Mass. 319 | Mass. | 1901

Holmes, C. J.

The original proceeding in this ease was under St. 1890, c. 428, for the abolition of a grade crossing. On June 25,1900, a decree was made confirming the d'ecision of the commissioners, and the parties were ordered to proceed to carry out the work of abolishing the grade crossing as provided in the commissioners’ report. The attorneys of the town of Hadley had indorsed their agreement that the decree might be entered, and the Commonwealth had waived hearing upon it. Thereupon the work was begun, and a considerable sum has been expended by the Boston and Maine Railroad. The selectmen of Hadley now have petitioned for leave to file a bill of review, seemingly being induced to do so by the fact that the Massachusetts Highway Commission is not satisfied with the report and may decline to build a State highway at the point in question unless a change is made in the plan. The petition was heard by a judge of the Superior Court, and he found that a widening of the space between the abutments on the two sides of the road under the railroad bridge would add to the public safety and convenience to an extent sufficient to justify the additional expense, and on that ground granted leave to file the bill, and, it being understood that the whole case should be gone into at once, reversed the decree and recommitted the matter to the commissioners subject to a report by him to this court. The judge distinctly rejected other grounds for review, and, as he reports, puts his decree on the single ground just stated.

We assume without deciding that the former decree was a final decree and that the statutes leave it open to revision by a bill of review in a proper case. But we think it so plain that this is not a proper case for such revision that we shall not argue" the matter at length, especially as the case ought to be decided at once. This decree was made with the petitioners’ consent, Evans v. Hamlin, 164 Mass. 239, 240, and the ground on which it now is reversed is that the judge takes a different view of the facts from that which was taken by the commissioners. The reversal is not put on the ground that the commissioners were deceived or misled in any way, or that new evidence has been discovered other than cumulative evidence on issues understood and considered by the commissioners. We do not see that it is necessary to say more. The relation of the commissioners to the court is well set forth in Old Colony Railroad, petitioner, 163 Mass. 356,359. We quote the restrictive words which are applicable to this case: They “ constitute a tribunal which is finally to decide the matters of fact. . . . The court has no power to revise their report and order a change to be made otherwise than as they finally recommend.” Without more than appears in this report the judge could not properly have refused to confirm the commissioners’ decision in the first instance; and even if he, instead of the commissioners, had been the proper tribunal to try the facts, we see no ground, according to the ordinary principles on which bills of review are allowed to be filed, on which he now could reopen his decree. Another remedy is given by statute in case an alteration shall be deemed necessary hereafter. Pub. Sts. c. 112, § 129. Northampton v. New Haven & Northampton Co. 175 Mass. 430.

Decree of June 25, 1900, to stand.