South Boston Railroad v. Middlesex Railroad

| Mass. | Jan 8, 1877

Morton, J.

The plaintiff’s bill can be maintained only upon the ground that the order of the board of aldermen passed June 26,1876, is invalid.

Previously to this order, the defendant, the Middlesex Railroad Company, a corporation owning and operating more than two consecutive miles of track, had been authorized to enter upon and use the tracks of the Metropolitan Railroad Company in Washington Street as far as its junction with Boylston Street. The order contains two parts: one authorizing the Middlesex Railroad Company to enter upon and use the track of the Metropolitan Railroad in Summer Street, as far as Lincoln Street, and also to enter upon and use the track of the South Boston Railroad Company on Beach Street, between Lincoln and Washington streets, and the track of the Metropolitan Railroad on Washington Street, between Beach and Boylston streets; the other granting to the Middlesex Railroad Company the right to locate and lay down tracks in Lincoln Street. The manifest purpose of the order was to establish a circuit or route by which the Middlesex Railroad Company could convey its passengers to and from the passenger station of the Boston and Albany Railroad.

The plaintiff contends that the board of aldermen had no power to authorize the defendant to locate and lay its tracks through Lincoln Street, because such location is not an extension of the existing location of the defendant’s tracks, but is a new location, without connection with any previous one.

The authority of the board of aldermen is derived from the St. of 1874, c. 29, The eleventh section provides that “ the board of aldermen of any city and the selectmen of any town may, from time to time, upon petition, authorize and empower any street railway corporation, its lessees and assigns, whose charter has heen duly accepted, and whose tracks have heen located and constructed, to extend the location of its tracks within the territorial limits of such city or town, whenever it can he done without entering upon or using the tracks of any other street railway corporation, under such restrictions as they deem the interests of the public may require.”

The twelfth section provides that “whenever the board of aldermen of any city, or the selectmen of any town, after due notice and hearing, shall decide that public necessity and convenience so require, they may authorize and empower any street railway corporation, its lessees and assigns, whose tracks have been duly located in such city or town, and who own and operate not less than two consecutive miles of track, to enter upon and use with its horses and cars, within defined limits, the tracks of any other street railway corporation therein, which it may meet or cross, subject to the provisions of law relating to such entry and use.”

The word “ extend ” may, in its primary sense, when applied to a railroad track or other line, import a continuation of the line without a break. But we do not think that in this statute the Legislature intended to use it in this restricted sense. The object of the statute was to delegate to the local authorities of the cities and towns the powers of authorizing and controlling the location of street railways within their limits, and to obviate the necessity of an appeal to the Legislature whenever it is deshed to establish a new street railway, or an existing company desires to locate additional tracks. The power to authorize a railway “ to extend the location of its tracks,” may be held, without any violence of construction, to include the location of an additional track, not connected with the existing tracks except by the tracks of another railway corporation. This construction is in harmony with the general spirit and purpose of the statute.

It is urged against this construction, that the eleventh section limits the right “ to extend the location of its tracks ” to cases wnere “it can be done without entering upon or using the tracks of any other street railway corporation.” The object of this limitation is to prevent the confusion of rights and powers which might follow, if two independent corporations had locations over the same ground. It applies only in a case where the location cannot he made without entering upon and using the track of another corporation. It certainly cannot apply where, as in the case at bar, the location is in another street. The fact that the located track cannot be profitably used unless authority is obtained, under the twelfth section, to enter upon and use the track of another corporation, does not bring the case within the letter or spirit of the limitation.

We are of opinion, therefore, that the board of aldermen had power to authorize the defendant to locate a track in Lincoln Street, and to enter upon the tracks of other corporations, as. provided in their order. Bill dismissed.