178 Mass. 363 | Mass. | 1901
The railroad of the defendant corporation is to be constructed in all particulars in accordance with the Pub. Sts. c. 112, §§ 223, 224, unless the construction of such a railroad upon a public highway, the fee of which is owned by the abutting landowner, is a taking and use of land of such owner without his consent. The selectmen of Uxbridge, in consenting to the construction of the railroad and in making regulations in regard to it, have assumed that the plaintiff has no ownership of the highway that is affected by this use of it. Of course, if the construction of such a railroad along the road is a taking and use of the plaintiff’s property without his consent, the statute, as applied to this case, is unconstitutional; for it contains no provision for compensation.
The decision of the case must turn, therefore, on two questions : first, what rights of property has a landowner in his land which has been taken and appropriated to use as a public highway ; and second, what effect, if any, does the construction of such a railroad as this along the highway have upon these lights. The public authorities may use a highway in any proper manner which is reasonably incident to the appropriation of it to public travel, and to the ordinary uses of a street or road under different conditions. The owner .of the fee from whom the easement is taken may use his land in any way which is not inconsistent with the paramount right of the public to use it, and this paramount right may include the laying of gas or water pipes, of sewers, and of street railway tracks, the setting of posts for the support of electric wires, or any other use of a public nature which is incident to the location and maintenance of the street. Callender v. Marsh, 1 Pick. 418. Pierce v. Drew, 136 Mass. 75. Howe v. West End Street Railway, 167 Mass. 46. Como v. Worcester, 177 Mass. 543. It is often difficult to deter- • mine whether a new use of a highway is an interference with
If the use in this case, to which the selectmen have consented under the authority of the statute, is in its nature a public use, and is not more burdensome than other public uses which have been held to come within the possible contemplation of the authorities in laying out highways, it is not an encroachment upon the right of the plaintiff as owner of the fee. By the facts agreed it seems to be less burdensome than ordinary electric railways, such as have become common in all parts of the State, the construction of which is held not to impose an additional servitude upon the land included in a public way. The track and rails are not different from those of street railways, there are no posts or wires, the cars are to be propelled by horses, every car is to be preceded at a safe distance by a flagman, no car is to run at a speed exceeding three miles an hour, and the cars are allowed to be run only at certain hours of each day.
The use of a highway for the transportation of merchandise to be used by different purchasers in many places is a public use, and thé defendant corporation in carrying its stone over the road is doing it as one of the public. It may be better for the condition of the road, and more for the interest of the general public, that the products of this quarry should be transported over the road on iron rails, than that the surface should be rutted with the wheels of heavily loaded wagons. The Legislature was well warranted in recognizing that this kind of use "of a highway might be a proper public use of it, and the selectmen have kept well within the statute in prescribing regulations.
The plaintiff suffers no damage for which he is entitled to compensation. ‘ For the changed public use of the way he is presumed to have received compensation when the way was laid out. Callender v. Marsh and Como v. Worcester, ubi supra. There is to be no change of grade opposite to his premises, and no action which will entitle him to damages under Pub. Sts. c. 52, § 15, or c. 49, §§ 15, 16, 68. The case falls within the decisions
A majority of the court are of opinion that the proposed action of the defendant is authorized by the statute and by the consent of the selectmen, and that the statute, as applied to this kind of a railroad, is constitutional.
Bill dismissed.
